Opinion
No. C 97-3105-MWB.
March 17, 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 raising three issues. First, the plaintiff contends that the ALJ violated the Polaski standard in evaluating her allegations of limitations and subjective pain complaints. Second, the plaintiff argues that because the ALJ erred in the Polaski analysis, he also erred in determining her residual functional capacity. Third, the plaintiff argues that the ALJ incorrectly found that she could perform substantial gainful activity that exists in the national economy. As a consequence, the plaintiff claims she is entitled to an award of SSI benefits, or, in the alternative, a remand of her 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 Sharon K. Bates ("Bates") previously filed an application for DI benefits on August 24, 1993, and for SSI benefits on October 24, 1993. The applications were denied initially on December 8, 1993, and Bates did not appeal.
Bates filed a second set of applications for DI and SSI benefits on March 14, 1994, alleging the inability to work since December 4, 1991. These applications were denied initially on May 12, 1994, and denied upon reconsideration on November 4, 1994. On September 22, 1995, ALJ John P. Johnson held a hearing on the applications. Attorney Mark S. Soldat represented the plaintiff. Beverly Larson, Henry Bates, and the plaintiff presented testimony at the hearing. A vocational expert ("VE"), Jeff L. Johnson, also presented testimony.
On November 24, 1995, the ALJ ruled that Bates was entitled to neither DI benefits nor SSI benefits. The Appeals Council of the Social Security Administration denied Bates's request for review on September 3, 1997, thus making the ALJ's decision the final decision of the Commissioner. Bates then filed a timely complaint on October 30, 1997, seeking judicial review of the ALJ's ruling (Doc. No. 1). Subsequently, on August 14, 1998, 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. 13). The court turns now to a review of Bates's application for benefits pursuant to 42 U.S.C. § 405(g).
B. Factual Background Introductory facts and plaintiff's daily activities
Bates, who was fifty years old at the time of the hearing, is a high school graduate and certified as a home health aide. (R. at 61-62.) Her past relevant work includes experience as a general clerk, a cook, a home health aide, and a companion. (R. at 333.) Bates alleges that she is disabled by back problems and chronic pain syndrome. (R. at 161-68.)
As part of her application for DI and SSI benefits, Bates completed several written statements about her daily activities. On a disability report filed in October 1993, she indicated that she did no cooking, baking, or shopping. (R. at 201.) She listed no recreational activities or social contacts, and stated that she could not sit or stand for more than ten minutes because of pain. In a disability report filed in March 1994, Bates listed essentially the same answers, but noted a minimal increase in the time she could sit and stand, fifteen minutes, before the pain forced her to change positions. (R. at 207-10.) Bates also filled out a supplemental disability report in June 1994, which showed that Bates visited friends, but for no more than one half of an hour at a time, and performed a few household chores. (R. at 215-17.)
At the September 22, 1996, hearing, Bates elaborated on her daily activities reported in her benefits applications. She gets up between 6:30 a.m. and 7:00 a.m. (R. at 80.) Two to three mornings per week she works from 7:30 a.m. to 10:30 a.m. as a companion for an elderly couple. (R. at 71, 81.) After work she usually stops at a friend's house for coffee. She stays at her friend's house as long as possible, until between 12:00 p.m. and 2:00 p.m., because when she arrives at her own home she sees the tasks that need to be done and gets depressed because she cannot complete them. (R. at 81.) Bates then goes home where she often berates her husband for failing to do household chores. (R. at 81.) For the remainder of the day, she lies or sits down and reads the paper or watches television, although sitting or standing for more than one hour at a time causes her pain. Bates helps prepare dinner, but her husband and children actually cook the food. After dinner, she alternates between sitting, standing, and walking to ease her back pain. Bates goes to bed around 9:00 p.m. or 10:00 p.m, but does not fall asleep until 10:30 p.m. or 11:00 p.m. (R. at 80.) She wakes up two or three times at night. Additionally, Bates attends night class one or two nights per week for three hours. The teacher accommodates Bates's needs for alternating between sitting, standing, and walking. (R. at 100.)
Bates also provided testimony regarding the restrictions caused by her pain. She cannot bend, twist, turn, or climb stairs. (R. at 76-77.) Bates cannot stand or sit for more than fifteen to twenty minutes, and cannot walk more than four blocks. (R. at 76-78.) She cannot push or pull with her arms or lift more than ten pounds. (R. at 77-78.) She also has pain occurring in her hands after using them for more than fifteen to twenty minutes. (R. at 77.) Bates cries three to four times per day due to stress caused by money concerns and certain domestic matters. (R. at 79-80.) The stress also causes Bates to become irritable which she sometimes takes out on her family.
Beverly Larson ("Larson"), a friend of Bates', testified that she and Bates had been friends for five years. (R. at 91.) Larson saw Bates weekly before the summer of 1994. During that summer, Bates and Larson saw each other more frequently because Larson had knee surgery and Bates performed companion-like duties for Larson, such as preparing lunch and doing laundry. (R. at 91.) Larson told the ALJ that since December 1991, she and Bates still met to do crafts, but less frequently. Larson confirmed Bates' unpredictable need to rest, depression, and lack of concentration. (R. at 93.) She said that Bates tried to hide her pain, but noticed that in activities such as walking, Bates could not do it like she once did.
Bates' husband, Henry Bates ("Henry"), essentially corroborated Bates' testimony. Henry described Bates as depressed, unable to do housework, and unable to maintain concentration. (R. at 95-96.)
Vocational expert's testimony
The ALJ asked the VE two hypothetical questions at the September 22, 1994 hearing. In his first hypothetical, the ALJ explained that the hypothetical claimant would have the same age, sex, education, and work experience as Bates. (R. at 104.) The hypothetical claimant would also have the same impairments as Bates: degenerative disk disease of the lumbar spine, obesity, depression, and chronic pain syndrome. The ALJ added the following restrictions to the hypothetical claimant:
Q.: . . . except for lifting of no more than 20 pounds, routinely lifting 10 pounds, with both standing of more than 1 hour at a time, no sitting of more than 1 hour at a time, and no walking of more than 15 minutes at a time, with no repetitive bending, stooping, squatting, kneeling, crawling, or climbing. This individual is not able to do very complex or technical work, but is able to (sic) more than simple, routine, repetitive work. She does require occasional supervision and she should not work at more than a regular pace using three speeds of pace being fast, regular, and slow.
(R. at 105.)
The ALJ then asked the VE whether a hypothetical claimant with the characteristics and restrictions enumerated above could perform any of the hypothetical claimant's past work. The VE testified that, because of the standing and walking limitations, such a claimant could not perform any of her past relevant work. (R. at 105.) However, because the hypothetical claimant would possess transferable skills from her work as a home health aide, such as record-keeping abilities, she should be able to find work as a companion or as a general clerk. (R. at 106.)
In his second hypothetical question, the ALJ proposed a more limited hypothetical claimant. The hypothetical claimant again had Bates's same age, sex, education, work experience, and impairments. (R. at 106.) The hypothetical claimant also had the remaining characteristics and limitations as the preceding hypothetical, except that this hypothetical claimant could only lift up to ten pounds, stand for up to fifteen to twenty minutes, sit for up to fifteen to twenty minutes, and walk up to four blocks. (R. at 106.) Additionally, this hypothetical claimant could do no repetitive pushing or pulling, could not continuously use her hands for tactile sensation, could do no repetitive work with her arms overhead, nor could she work in an environment with more than a moderate stress level. (R. at 106.)
The VE testified that the hypothetical claimant in the ALJ's second question also would not be able to perform her past relevant work. (R. at 107.) Moreover, the VE testified that the second hypothetical claimant would not have transferable skills, and that the standing, sitting, walking, and hand limitations would preclude all work activities. (R. at 107.)
The VE also responded to a question from Bates's attorney regarding the employability of a person who required several unscheduled breaks throughout a normal workday. The VE stated that such a person would be precluded from employment. (R. at 108.)
3. Plaintiff's medical history
Bates's relevant medical history began on December 6, 1991. On that date she saw Scott B. Wood, D.C., because of an injury to her back while performing duties as a home health aide. (R. at 229.) Dr. Wood kept Bates off work until December 18, 1991. (R. at 231.) Dr. Wood treated her rather frequently from December 1991 through April 1992. Through January 1992, Bates's condition improved, and Dr. Wood allowed her to increase her workload. (R. at 233.) In early February 1992, Bates had a "temporary increase in intensity of her symptoms," but, "her symptoms . . . beg[a]n to reduce," in late February 1992. (R. at 234.) Dr. Wood took Bates off work again from April 1, 1992 to April 14, 1992, citing her unstable condition. (R. at 235.) While Dr. Wood apparently treated Bates through March 1994, (R. at 287), he referred her to R. E. McCoy, M.D., in April 1992.
Bates' initial visit to Dr. McCoy was on April 14, 1992. He had x-rays taken of Bates's lumbar spine which showed moderate anterior marginal spurring at the L2-3 and L3-4 levels, and no disk space narrowing. (R. at 237.) He concluded that Bates's problems stemmed from an acute back sprain, but he did not see signs of a herniated intervertebral disk or of nerve root irritation. (R. at 237.) Based on these findings, Dr. McCoy "did not think her problem ha[d] a surgical remedy," and recommended conservative treatment, bed rest, gradually increasing distances of ambulation, and a weight reduction program. (R. at 237.) Dr. McCoy also recommended Bates remain off work.
At the time of her first appointment with Dr. McCoy, Bates was 5'6" tall and weighed 255 pounds.
Dr. McCoy continued to see Bates almost weekly from April 14, 1992 through May 12, 1992. (R. at 238-240.) In those visits, he noted Bates's improving condition and recommended physical therapy. He also continued to recommend that Bates gradually increase her distances of ambulation. By her last visit to Dr. McCoy on May 12, 1992, Bates was walking one mile five times per day and getting physical therapy three times per week. (R. at 239.) Bates, however, continued to report pain in her lower back that sometimes radiated to her right buttock and right thigh. On May 12, 1992, she also reported swelling in her lower back (R. at 239), although an examination by Dr. McCoy revealed no swelling. (R. at 239.) Dr. McCoy opined that although he had seen considerable progress in Bates's level of activity tolerance, he was "becoming concerned that lack of motivation to return to work may be a significant part of her problem." (R. at 239.) Dr. McCoy's notes show that Bates canceled her next appointment, and that she had an appointment with Daniel J. McGuire, M.D. for an MRI. (R. at 240.)
Bates actually saw Dr. McGuire for the first time on April 30, 1992 (R. at 242-43), before her last visit with Dr. McCoy. Dr. McGuire examined Bates and listed his impression of her condition as "idiopathic low back pain." Dr. McGuire "explained to [Bates] that there is no rational surgery for this." Instead, he suggested a non-operative approach that included medication, time, physical therapy, modification of the job site, and modification of home activities. He "encouraged her to get on with her life," and "to try to get back to work." Dr. McGuire felt that, at that time, Bates should only work a few hours per day with a weight limit between thirty and fifty pounds. Additionally, he saw no need for further chiropractic manipulations.
Bates returned to see Dr. McGuire on May 22, 1992. (R. at 244.) At that visit, Bates requested that Dr. McGuire order her an MRI or discography. Dr. McGuire initially refused, essentially telling Bates that those tests would not tell him anything he did not already know about Bates' condition. Noting that it was "almost impossible to be rational" with Bates, he capitulated to her request for an MRI. (R. at 244.) However, when attempting to set a date for the test, Bates was only available one or two days out of the next month. Bates' unavailability prompted Dr. McGuire to assume that Bates was not "too bad," or was "too scared." (R. at 244.) Dr. McGuire released Bates to work. She eventually had the MRI on June 5, 1992.
On June 8, 1992, Bates saw Dr. McGuire for an examination and to discuss the results of the MRI. (R. at 245.) Bates complained of pain and swelling in her lower back. Dr. McGuire found no spasms, swelling, warmth, erythema, or scoliosis. Furthermore, he found that she had a little limitation of motion secondary to subjective pain, and that her exam was "pretty benign." As for the MRI, Dr. McGuire explained that "all of the changes we are seeing are most likely longstanding problems." Noting no disability, he again suggested that Bates go back to work.
Bates' medical history also includes records of her physical therapy sessions at St. Joseph's Mercy Hospital in Mason City, Iowa, from June 22, 1992, to July 2, 1992. Kurt Walderbach, P.T. first examined Bates. Bates reported to Walderbach that she was frustrated with her course of care and felt that Dr. McGuire was biased. She stated that "I have done everything I'm supposed to do and feel that I am being treated very unfairly by Workers' Compensation and the doctors in Des Moines." (R. at 253.) Walderbach noted that upon examination, Bates tested positive for all five of the "Waddel" criteria, a test for differentiating between organic and non-organic lower back pain. He also found that Bates' pain level and functional level were inconsistent, and that there was a low correlation between her subjective complaints and his objective findings. Walderbach recommended a progressive work conditioning program, re-initiation to work activities, and a progressive increase of time at work. Walderbach eventually talked with her former employer, Hancock County Homemaker Home Health Aide Service, and they agreed that Bates would return to work on July 6, 1992, at two and one-half hours per day and not more than five consecutive workdays at a time. This would increase gradually each week by adding one-half hour to each period of work time. (R. at 265.)
David W. Beck, M.D., a neurological surgeon examined Bates on August 17, 1992, and found that she was "neurologically intact". (R. at 271.) Although an MRI showed a slight disc bulge at L2-3 and a slightly degenerative disc at L5-S1, Dr. Beck noted that the results were "essentially negative." Dr. Beck remarked:
I think at this time Ms. Bates has reached maximum medical improvement. I think her low back pain is work related. I think at most she has about a 2% disability. I do not think any surgery is indicated on her. I am very skeptical whether you will ever get her back to work, as she doesn't seem to be too motivated toward that.
(R. at 271.)
In November 1993, Dr. Wood diagnosed Bates with a lumbar subluxation at the L 4-5 level. (R. at 274.) He reported that Bates was capable of everyday functions, such as bathing, shopping, eating, and dressing, and that she could do a minimal amount of lifting and carrying. Dr. Wood did not recommend that Bates stand in one spot too long or walk for extended periods. He recommended occasional stooping, kneeling, bending, and crawling, and infrequent climbing. He also suggested weight loss.
Bates' attorney hired Richard M. Salib, M.D., to examine Bates on February 2, 1994. (R. at 300-01.) Bates again tested positive for the Waddel criteria, suggesting either hypochondriasis or symptom magnification. Dr. Salib felt that Bates showed "definite evidence of chronic pain syndrome," but that she had only a partial disability of 10.5 percent. He concluded that Bates was capable of working with "light" restrictions, such as "sitting in a standard chair, but changing positions every 15 minutes, standing and walking but changing positions or resting every 15 minutes, carrying 10 pounds occasionally during the day, no bending or lifting, pushing or pulling up to 10 pounds not on wheels and 25 pounds if it is on wheels." (R. at 301.) According to Dr. Salib, Bates did not need further treatment, but should instead go to a chronic pain clinic.
On August 20, 1994, Alford S. Karayusef, M.D., performed a psychiatric examination on Bates. (R. at 303-05.) Dr. Karayusef's findings regarding Bates' daily activities mirrors the testimony Bates gave at the hearing. Upon examination, Dr. Karayusef found Bates to be able to remember and understand instructions, procedures, and locations. She could carry out instructions, maintain attention, concentration, and pace. Dr. Karayusef found no problems with Bates' ability to interact with supervisors, co-workers, or the public. He also found that Bates was able to exercise good judgment and respond to changes in the work place.
Bates saw another neurologist, Sant M.S. Hayreh, M.D., on September 29, 1994. (R. at 320-21.) Dr. Hayreh's examination revealed that Bates had "subjective tenderness on deep percussion of the lower lumbar spine, but if her attention was diverted, no significant tenderness could be elicited." (R. at 320.) Based on his determination that Bates had: (1) exogenous obesity, (2) chronic low back pain syndrome that was probably mechanical back pain and musculoskeletal in nature, and (3) suspect underlying depression, he recommended further evaluation with MMPI testing.
The Minnesota multiphasic personality inventory, or MMPI, is "a questionnaire type of psychological test for ages 16 and over, with 550 true-false statements coded in 14 personality scales in both individual and group forms." STEDMAN'S MEDICAL DICTIONARY 1571 (25th ed. 1990).
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); 20 C.F.R. § 416.920(a) (1999). He determined that Bates had not engaged in substantial gainful activity since December 1991. Although he found that the medical evidence established that Bates' combination of impairments, including degenerative disc disease, obesity, chronic pain syndrome, and mental depression were severe, he also found that Bates did not have an impairment or combination of impairments equal to those listed in Appendix 1, Subpart P, Regulations No. 4. Relying on the testimony of the VE, the ALJ then determined that Bates could not return to her past relevant work, but that she did have the residual functional capacity and transferable skills to be able to perform other work which existed in significant numbers in the national economy, such as a companion or a general clerk.III. ANALYSIS A. Standard of Review
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
Bates argues that the ALJ's decision is not supported by substantial evidence. Although she agrees with the ALJ's decision through the first four steps of the five-step process outlined by the regulations, see supra Part III.B., Bates contends that the ALJ incorrectly determined her residual functional capacity because he improperly discredited her subjective pain complaints. Consequently, she argues that the ALJ erred when he found that she could perform substantial gainful activity that exists in significant numbers in the national economy.
To support her argument, Bates notes that she has been diagnosed with chronic pain syndrome. She states that chronic pain syndrome is a condition where a person may not have a physical, organic injury, yet still feels pain. She reasons that the inconsistencies between her subjective pain complaints and the lack of objective medical evidence noted by the ALJ actually supports her contention that she is disabled by chronic pain syndrome.
1. Whether the ALJ improperly discredited Bates' subjective pain complaints
An examination of Bates' argument first requires a proper analysis of her subjective pain complaints, regardless of the cause, and how they affect her ability to work. "The question is not whether appellant feels any pain . . . but whether to believe her claim that those subjective complaints prevented her from performing . . . work." Pickner v. Sullivan, 985 F.2d 401, 404 (8th Cir. 1993). To evaluate Bates' subjective pain complaints, the court turns to the ALJ's review of the Polaski factors and how they apply to this case.
a. the claimant's daily activities
Besides Bates' ability to perform her part-time work as a companion, a job that does not seem to require a lot of physical effort, nothing else in the record points to any inconsistency between her pain complaints and her daily activities. She testified, and her husband corroborated, that although she may help with some of the household chores, the amount of the help is insignificant. 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 the present case, a review of Bates' testimony suggests that she was only able to perform these duties if she rested frequently and had assistance from her family. Under these circumstances, this factor weighs in favor of the claimant and not against her.
b. the duration, frequency, and intensity of pain
The record is replete with Bates' consistent complaints regarding the duration, frequency, and intensity of her pain. Even when her physicians noted improvement in her condition, their notes reflect her continued pain complaints. According to Bates, the pain was centered around her low back region but also radiated to her buttocks and legs, and was interminable. She also complained several times to physicians of swelling in her low back.
The ALJ, however, found Bates' "allegations concerning the existence, persistence and intensity of symptoms at the hearing and by her applications [to be] less than fully credible." (R. at 24.) The ALJ buttressed his conclusion by noting that Dr. Salib and the physical therapist, Walderbach, both found that Bates displayed signs of symptom exaggeration.
In contesting the ALJ's conclusion, Bates points to a letter written by Dr. Salib to Bates' attorney after the hearing but before the Appeals Council's decision. The letter was a response to a request for clarification by Bates' attorney. In it, Dr. Salib remarked that he did not think Bates was a malingerer, but rather that she suffered from chronic pain syndrome and that the pain was "real to her." (R. at 343.) Dr. Salib goes on to say that he hoped with "appropriate instruction in chronic pain management [Bates] would have an improved clinical outcome." (R. at 343.)
In Riley v. Shalala, 18 F.3d 619 (8th Cir. 1994), the Eighth Circuit Court of Appeals addressed the interesting situation presented where a claimant submits evidence after the ALJ's hearing but before the Appeals Council's review. The court explained that:
Once it is clear that the Appeals Council has considered newly submitted evidence, we do not evaluate the Appeals Council's decision to deny review. Instead, our role is limited to deciding whether the administrative law judge's determination is supported by substantial evidence on the record as a whole, including the new evidence submitted after the determination was made. (citation omitted). Of necessity, that means that we must speculate to some extent on how the administrative law judge would have weighed the newly submitted reports if they had been available for the original hearing. We consider this to be a peculiar task for a reviewing court.Id. at 622. The record reflects that the Appeals Council considered the newly submitted evidence. (R. at 8.)
Bates also notes that another consulting physician, Dr. Hayreh, diagnosed her with chronic pain syndrome, therefore corroborating Dr. Salib's diagnosis and credibility. Bates does not mention, however, that Dr. Hayreh's one-time examination revealed that although Bates complained of pain upon "deep percussion of the lower lumbar spine, . . . if her attention was diverted, no significant tenderness could be elicited." (R. at 320.) Furthermore, Dr. Hayreh's impression of Bates' condition listed "Suspect underlying depression." (R. at 320.) Dr. Karayusef, a consulting psychiatrist, similarly diagnosed depression, but characterized it as "mild" and her prognosis as "fair." (R. at 304.)
While both Bates and the Commissioner can claim "points" from Dr. Hayreh's and Dr. Karayusef's examinations and from Dr. Salib's examination and subsequent clarification of that examination, generally, the opinions of a consulting physicians who examine a claimant once do not constitute substantial evidence. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (citation omitted). Since the opinions of Dr. Salib, Dr. Hayreh, and Dr. Karayusef all contain contradictory findings and diagnoses, they do not support the conclusion that the ALJ's findings were not based on substantial evidence.
c. precipitating and aggravating factors
The ALJ did not explicitly address the precipitating and aggravating factors of Bates' pain. From the record, it appears that Bates claims that physical exertion of almost any kind aggravates her condition. This is supported both by Bates' testimony, and the notes of most of the physicians who treated her.
d. dosage, effectiveness, and side effects of medication
The ALJ's decision cited a lack of evidence regarding medication as a factor in concluding that Bates was not disabled. Specifically, the ALJ noted that the only pain medication Bates took at the time of the hearing was aspirin. See Richmond v. Shalala, 23 F.3d 1441, 1443-44 (8th Cir. 1994) (lack of strong pain medication inconsistent with subjective complaints of disabling pain). A search of the record also reveals that Bates unsuccessfully tried using a TENS unit for a short time, (R. at 262), and that doctors never continued prescriptions for pain. This evidence diminishes the credibility of Bates' pain complaints.
e. functional restrictions
Bates relies on her own testimony corroborated by the testimony of her husband and the testimony of her friend to support a finding that she is functionally restricted from all work. Citing Dr. Salib's letter, she explains that even though a lack of objective evidence suggests that she does not experience pain to the extent she describes, the pain she feels is very real to her.
The ALJ relied on statements of both treating and consulting physicians to determine that Bates' claims about her functional restrictions lacked credibility. "A treating physician's opinion is generally entitled to substantial weight, although it is not conclusive and must be supported by medically acceptable clinical or diagnostic data." Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). Dr. McCoy, who treated Bates almost weekly from April 1992 through May 1992, thought Bates could return to work, part-time at first, in May or June 1992, but said he was "concerned that lack of motivation to return to work may be a significant part of [Bates'] problem." (R. at 239.) Dr. McGuire, who saw Bates a total of three times in the spring of 1992, found that "[t]here is really not any disability here," and "strongly suggested that [Bates] go back to work." (R. at 245.) Dr. Beck, a neurosurgeon who conducted one examination of Bates, found that she had at most a two percent disability. He was also "very skeptical" about whether Bates would ever go back to work because "she didn't seem motivated toward that." (R. at 271.) Even Dr. Salib, who Bates relies on to support her argument that her pain was disabling, stated in his examination notes that Bates had a 10.5 percent disability and was capable of working. Furthermore, nothing in his letter that clarified his examination states that Bates was disabled and incapable of working.
The ALJ found correctly that Bates claims regarding her functional restrictions lacked credibility. None of the doctors who examined Bates found that she was disabled and therefore precluded from work. Additionally, the fact that her treating physician's opinion regarding her ability to return to work was corroborated by three other physicians provides the support needed to give the opinion substantial weight. See Kelley, 133 F.3d at 589.
f. other Polaski factors
The ALJ pointed out that Bates' work history suggested a lack of motivation to work. See McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993) (noting "spotty" work record diminished claimant's credibility). The ALJ found Bates' prior work record to be uneven and lacking years of significant income. Bates' brief supporting this action mentions in passing that during her years of low earnings she was raising her children. The court finds nothing in the record to support or refute the statement, but agrees with the ALJ in that the record shows that in the years in which Bates did work her earnings fluctuated significantly. This tends to diminish Bates' credibility regarding her subjective pain complaints.
The ALJ was also required to consider the testimony of Bates' witnesses. See Siemers v. Shalala, 47 F.3d 299,302 (8th Cir. 1995) (assessing the credibility of the witnesses lies within the province of the Secretary) (citation omitted). He concluded that they were "credible in part, but showed partiality and dependence on the statements of the claimant." (R. at 25.) The court finds nothing in the record to refute that finding.
g. Polaski analysis
Upon considering the record as a whole, the court finds that the ALJ correctly evaluated Bates' subjective pain allegations under the Polaski standard. The ALJ detailed the reasons supporting his conclusion and found that Bates' daily activities, statements of Bates' treating and consulting physicians, her use of over-the-counter pain medication, her spotty work record, and the lack of objective medical evidence diminished the credibility of her subjective pain complaints. Except for the finding regarding Bates' daily activities, the court agrees with the ALJ. See Brown v. Chater, 87 F.3d 963, (8th Cir. 1996) (affirming ALJ's decision where it relied on lack of objective medical evidence, lack of any significant restrictions imposed by treating physicians, and that ALJ could discount testimony of claimant's brother).
2. Whether the ALJ erred in evaluating Bates' residual functional capacity
The court must also consider whether substantial evidence exists to support the ALJ's determination of Bates' residual functional capacity. The ALJ found that Bates could lift no more than twenty pounds occasionally, lift no more than ten pounds frequently, stand for no longer than one hour at a time, sit for no longer than one hour at a time, and walk for up to fifteen minutes at a time. Bates could not do any repetitive bending, stooping, squatting, kneeling, crawling, or climbing on the job. Also, the ALJ found that Bates could do more than simple, routine, repetitive work at a regular pace with occasional supervision, but could not do complex technical work.
The ALJ included these findings in his hypothetical question to the VE. These findings seem to combine the less restrictive findings of the doctors who performed the residual functional capacity assessments for the Commissioner and the more restrictive findings of Dr. Salib. Because the ALJ correctly applied the Polaski analysis and found Bates' subjective pain complaints to be lacking in credibility, his decision to not fully credit Bates' version of her residual functional capacity is supported by the record. See Jenkins v. Chater, 76 F.3d 231, 233 (8th Cir. 1996) (it is within the authority of the ALJ to resolve any conflicts among opinions of treating and examining physicians).
3. Whether the ALJ erred in determining that Bates could perform substantial gainful activity existing in significant number in the national economy
If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the Commissioner must determine whether there is any substantial gainful activity in the national economy that the claimant can perform. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). The Commissioner has the burden to show that the claimant can perform other work. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995). Ordinarily, the Commissioner can rely on the testimony of a vocational expert to satisfy this burden. Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997).
In this case, the ALJ asked the VE a hypothetical question about whether a claimant with Bates' background and residual functional capacity could perform other work. The VE responded that such a claimant could perform work as a companion or general clerk. Therefore, the Commissioner satisfied his burden.
IV. CONCLUSION
The ALJ's decision is supported by substantial evidence. Bates' subjective pain complaints were not supported by the record as a whole. The ALJ expressly and correctly listed his reason for discounting the subjective pain complaints as well as for his findings regarding Bates' residual functional capacity. Furthermore, the Commissioner carried his burden in showing that Bates could perform substantial gainful activity that exists in significant numbers in the national economy.
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.