Opinion
No. C 97-3085-MWB.
March 11, 1999.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This matter comes before the court pursuant to the plaintiff's complaint (Doc. No. 1) seeking the reversal of the denial of his application for social security income ("SSI") benefits by the Commissioner of Social Security. See 42 U.S.C. § 1381 et seq. The plaintiff argues that the ALJ erred when he found that he was not presumptively disabled. The plaintiff also argues that the ALJ's decision is not supported by substantial evidence.
II. BACKGROUND A. Procedural History
Plaintiff William H. Conway ("Conway") filed an application for SSI benefits on September 14, 1995. His application was denied initially on October 31, 1995, and upon reconsideration on December 22, 1995. On January 4, 1996, Conway timely filed a Request for Hearing. Administrative Law Judge ("ALJ") Virgil E. Vail held a hearing on August 27, 1997. Attorney Joseph L. Fitzgibbons appeared on behalf of Conway. Conway and Vocational Expert ("VE") Sandra Trudeau presented testimony at the hearing. On November 15, 1996, the ALJ issued his opinion denying Conway's claim. The Appeals Council of the Social Security Administration, on June 27, 1997, denied Conway's request for review, thus making the ALJ's decision the final decision of the Commissioner.
This is Conway's third application for SSI benefits. Both of his previous two applications, filed on February 28, 1992, and March 16, 1995, were denied.
Conway timely filed his complaint challenging the final decision of the Commissioner on August 28, 1997. Defendant filed an answer (Doc. No. 6) to the complaint on December 9, 1997. On February 25, 1998, Conway filed a brief in support of his complaint (Doc. No. 10). He amended his brief on March 18, 1998 (Doc. No. 11), and again on June 9, 1998 (Doc. No. 13). Defendant filed a brief on April 22, 1998 (Doc. No. 12). Conway filed a Motion for Leave to Amend/Reopen Record on June 9, 1998 (Doc. No. 13). The court granted the motion on July 1, 1998 (Doc. No. 14). On August 14, 1998, by order of the Honorable Mark W. Bennett, the 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 recommended disposition of the petition (Doc. No. 12). The court now considers the matter to be fully submitted and makes the following findings of fact and conclusions of law.
B. Factual History Introductory facts and plaintiff's daily activities
Conway was 47 years old at the time of the hearing before the ALJ, and lived in Emmetsburg, Iowa. (R. at 28.) He is a high school graduate. (R. at 29.) Conway completed one and one-half years of junior college before being drafted into the armed services in January 1968. Id. Because he failed his military physical due to a hearing impairment, Conway did not report for active duty. Id. Conway returned to junior college in 1983, but he lost his driver's license and was unable to finish school. (R. at 30.)
Conway's work experience is varied. ( See R. at 30-33, 35-36, 130.) He worked as a material handler from approximately 1968 to 1975. From 1977 to 1980, he was an assistant manager at a Holiday gas station, and from 1981 to 1986, he was an inventory clerk. More recently, from 1989 to 1992, Conway worked as an assistant press operator and was in the Amway business from 1993 to 1995. However, at the August 27, 1997 hearing, the ALJ, in reviewing Conway's earnings record, (R. at 129), noted a sparse work record from 1981 to 1990.
As part of his application for SSI benefits, Conway completed several written statements about his daily activities. In a Disability Report filed in September 1995, he indicated that his wife and son did all of the household chores. ( See R. at 130-135.) He could drive without assistance and attended church once a week, but needed a walker to move around. He could not "stand for any period of time." (R. at 136.) In a Reconsideration Disability Report filed in November 1995, Conway stated that although he could take care of his own personal needs, he could not help take care of those of his family. ( See R. at 148-153.) Citing his inability to stand for longer than fifteen minutes, he noted that he could not help change the diapers of his infant daughter, nor could he wash dishes.
Conway elaborated on the facts provided in his benefits applications at the August 1997 hearing. ( See R. at 28-49.) He testified that at the time of the hearing his doctors restricted him from any repetitious activity on his right foot, and that he walked with a cane to avoid putting his full weight on his right foot. Because he constantly put more weight on his left side, Conway's hip and back on his left side also gave him pain. He testified that his doctors advised him to lift no more than ten to fifteen pounds occasionally, stand no more than twenty to thirty minutes, sit no more than twenty to thirty minutes, and walk no more than 200 feet. Conway testified that although he does not do any yard work, he sometimes does a few household chores, such as washing dishes or doing laundry. Conway can drive a car to get groceries, but needs assistance in carrying the groceries. Additionally, he noted that he has a one-year-old daughter and that he "kind of baby sit[s] her." (R. at 43.)
Vocational expert's testimony
The ALJ asked the Vocational Expert ("VE"), Sandra Trudeau, questions regarding a hypothetical SSI benefits claimant's ability to obtain employment. The ALJ explained that all of the hypothetical questions were based on a claimant of Conway's age, education, and work experience. He further asked the VE to assume that the hypothetical person had been "diagnosed as having diabetes mellitus for which he's on medication," "experienced foot problems with the right foot," experienced arthritic spurs in the Charcot joint for which he had extensive surgery in August 1995, "experienced considerable trouble" with the healing of the wound created by surgery, and is currently restricted in his ability to bear weight on his right foot. (R. at 54.) The ALJ also asked the VE to consider that the hypothetical person:
uses a cane so that he can reduce the amount of weight bearing that's placed on the foot. Let us assume that he has all of the limitations and restrictions that he testified here today, and let us assume that as indicated by his doctor, Sterling Labig (sic), in Exhibit number 30, that he would be restricted to not lift over 10 to 15 pounds occasionally. Not twist, turn or do repetitive activity on his feet. I assume that's on his right foot. He says feet, but — that he cannot stand, sit or walk for longer than 30 minutes or less maximum at any time without being able to sit down. Should not be in a cold environment or excessively warm environment and he needs to wear special shoes and insoles. And that would be the page 1 of Exhibit number 30.
(R. at 54.) Based on all of these characteristics, the ALJ asked the VE whether the hypothetical claimant would be able to perform any of the jobs performed in Conway's past.
The VE testified that the hypothetical claimant could work as a sales representative. (R. at 55.) Five thousand of these positions are available in Iowa, but because of Conway's walking restrictions, the hypothetical claimant would only be able to perform fifty percent, or 2,500, of the jobs. The VE also testified as to whether the hypothetical claimant, given the characteristics listed above, would have any transferable skills to apply to other jobs. The VE stated that the hypothetical claimant could use his transferable skills of recordkeeping, speaking persuasively, using math skills, and explaining company policies, to find a job as a telephone solicitor.
The VE then responded to questions from Conway's attorney, who asked the VE to reconcile her statements with a statement from one of Conway's treating physicians. ( See R. at 56-62.) In the letter, which was from Sterling Laaveg, M.D., to Conway's attorney, Dr. Laaveg stated that Conway's restrictions "effectively eliminate[d] him from the job market." (R. at 239.) The VE responded that although she would defer to Dr. Laaveg's opinion regarding Conway's medical restrictions, she disagreed with his statement regarding Conway's ability to obtain employment.
The ALJ, in noting his concern about the relevancy of questions about the hireability of Conway, as opposed to whether a hypothetical claimant with the characteristics listed by the ALJ would be hired, stated, "[W]hether they'd hire him or her or me or you is not an issue here. The question you want to ask, would they hire a person that has the disabilities that were related in that hypothetical question."
Conway's medical history
Gerald Wieneke, M.D. treated Conway from November 1980 to May 1995. ( See R. at 158-190.) Dr. Wieneke noted three episodes of cellulitis with Conway's left foot. These episodes were complicated by Conway's diabetes. The first episode, in April 1990, required Conway's hospitalization for seven days followed by three weeks off from work. The other two episodes, in November 1990 and February 1991, did not require hospitalization, but did require time off from work. Additionally, during the February 1991 episode, Dr. Wieneke observed that diabetes induced peripheral neuropathy complicated Conway's cellulitis episodes because he could not feel discomfort in his feet.Although Dr. Wieneke referred Conway to E. S. Henrich, D.P.M., in March 1991, a Dr. Wohlbrink also participated in the initial examinations of Conway. ( See R. at 212-239.) Dr. Wohlbrink diagnosed Conway as having diabetic ulcers and Charcot joint-like changes in Conway's right foot. X-rays of the right foot also showed degenerative arthritis. In later examinations in 1991, Dr. Wohlbrink and Dr. Henrich both noted improvement in the condition of Conway's feet. However, an x-ray of Conway's right foot in January 1992 revealed changes consistent with neurotropic arthropathy. In February 1992, Dr. Wohlbrink diagnosed, and Dr. Henrich concurred, that Conway had progressive Charcot joint destruction of the mid foot.
Dr. Henrich continued to see Conway regularly from March 1992 through March 1996. Initially, Dr. Henrich started Conway on antibiotics, which helped reduce the swelling in his feet. He also advised Conway about different adjustments he could make to his shoes, and eventually had custom-molded shoes made for Conway. The degeneration of the area around the mid-tarsal joint of Conway's foot, however, continued through mid-1993.
By August 1993, Conway was visiting Dr. Henrich approximately once every three months, but Dr. Henrich began noticing less Charcot joint destruction. In fact, at each of Conway's visits from November 1993 through July 1994, Dr. Henrich stated that Conway was doing "quite well" or "exceptionally well." (R. at 222-23.) Accordingly, Dr. Henrich reduced the frequency of Conway's visits to once every six months.
Conway saw Dr. Henrich on March 2, 1995, regarding a hole in the bottom of his right foot. Dr. Henrich noted a "circumferential ulcer," and that Conway had "significant peripheral neuropathy and Charcot joint." (R. at 218.) X-rays later revealed that Conway had a Charcot foot deformity, but no osteomyelitis. Dr. Henrich diagnosed Conway with a spur formation secondary to Charcot joint and a collapsing of the mid foot. To treat the condition, Dr. Henrich started Conway on antibiotics and recommended adjustments to his custom-molded shoes. In late March 1995, Conway's ulceration was doing better and not draining as much.
Dr. Henrich continued to treat Conway with antibiotics, but decided to hospitalize him for a plantar spur removal. He set the surgery for May 1995, but had to postpone it because of Conway's high blood sugar levels which resulted from his failure to control his diabetes. At this time, Conway had stopped seeing Dr. Weineke and had started seeing Ronald J. Creswell, M.D. In a May 3, 1995 visit to Dr. Creswell, Conway was admonished for his "exceedingly poor diabetic control." (R. at 211.) By August of that same year, however, Dr. Creswell's notes reflect that Conway improved his control over his diabetes enough to schedule the surgery for August 22, 1995.
The surgery went as planned on August 22, 1995. In the surgery, Dr. Henrich excised an ulcer and performed a partial ostectomy of the bone spur. Post-operatively, Dr. Henrich noted that Conway's foot was healing nicely. Conway then saw Dr. Henrich at least once a month until March 1996. Other than some blistering and a minimal infection, x-rays taken in March 1996 showed good healing.
On May 29, 1996, Conway saw Sterling J. Laaveg, M.D., about a total contact cast for his right foot. ( See R. at 240-255.) Conway returned on June 5, 1996, and received a new walking cast for his right foot. He returned again on June 19, 1996, and Dr. Laaveg, after noting that "the plantar aspect of [Conway's] foot is healing beautifully," applied another new walking cast to his right foot. (R. at 242.) In a follow-up visit on July 3, 1996, Conway's plantar ulcer was completely healed.
After his plantar ulcer healed, Conway used double depth shoes with arch supports to help prevent his foot problems from recurring. He experienced some initial problems, such as blisters, but they resolved eventually. On July 31, 1996, Dr. Laaveg allowed Conway to begin using a cane as opposed to the walker he had been using. Also at that visit, Dr. Laaveg noted that Conway was applying for disability benefits and elaborated that he should not be in a job that required lifting more than ten or fifteen pounds, twisting, or doing repetitive activity on his feet. He further stated that Conway could not stand or walk longer than thirty minutes, nor could he work in cold or excessively hot environments. He concluded that Conway was "effectively . . . incapable of doing any significant work." (R. at 240.)
After the hearing before the ALJ, but before the Appeals Council's ruling, Conway submitted additional evidence of continuing problems with his right foot. On January 13, 1997, x-rays of Conway's right foot showed mid lateral foot collapse in the fourth and fifth metatarsal region. Dr. Laaveg later diagnosed Conway as having a fifth ray infection with gangrene and necrosis over the fifth metatarsal head of the right foot. He proposed to amputate the fifth ray of Conway's right foot. Dr. Laaveg completed the surgical amputation on January 23, 1997. Although Dr. Laaveg's notes from Conway's post-operative visits reflect that the foot healed satisfactorily, a letter from Dr. Laaveg to Conway's attorney on March 7, 1997, stated that Conway was restricted from standing or walking for more than five to ten minutes at a time, and only thirty to forty minutes in an eight hour work day. Dr. Laaveg stated that Conway could not lift more than fifteen to twenty pounds, bend or twist repetitively, climb or crawl, nor work in a cold environment for any period over five to ten minutes. Dr. Laaveg ended the letter by noting that Conway's foot problems were permanent and could worsen over time.
After his motion to amend the record was granted on July 1, 1998 (Doc. No. 14), Conway submitted into the record another letter from Dr. Laaveg. The letter, dated May 12, 1998, reiterated Conway's history of bilateral foot diabetic peripheral neuropathy. Dr. Laaveg concluded that Conway was restricted to standing on either foot for no longer than fifteen to twenty minutes at a time, and to lifting no more than ten to fifteen pounds. According to Dr. Laaveg, Conway can do no repetitious bending or twisting, can not work in extremely hot or cold environments, and needs protection for both feet.
The ALJ's conclusions
Initially, the ALJ addressed the question of the time period subject to review. The fact that Conway's February 1992 application was denied more than two years before he filed his March 1995 application meant that the 1992 application could not be reopened. See 20 C.F.R. § 416.1488(b) (if "good cause" found, decision may be reopened within two years of date of notice of initial determination). The March 1995 application, however, was still within the twelve month window for reopening when Conway filed his application that is the subject of this report and recommendation. See 20 C.F.R. § 416.1488(a). Therefore, the ALJ's decision addressed the period of time starting from the date of the March 1995 application and going through the date of the hearing.
The ALJ then followed the steps for evaluating disability as provided by the Social Security Administration's Regulations. See 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). He determined that Conway had not engaged in substantial gainful activity since March 16, 1995. Although he found that the medical evidence established that Conway's diabetes mellitus, neuropathic joint disease of the right foot, and obesity constituted severe impairments, he also found that Conway did not have an impairment or combination of impairments equal to those listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ then determined that Conway's impairments did not prevent him from returning to his past work as a sales representative. He found that Conway had the residual functional capacity for sedentary to light work, and possessed transferrable skills for semi-skilled or skilled work. Relying on the testimony of the VE, the ALJ reasoned that a hypothetical claimant with Conway's residual functional capacity could perform other work which existed in significant numbers in the national economy, such as a telephone solicitor. The ALJ concluded that Conway was not disabled, and therefore was not entitled to benefits.
On June 27, 1997, the Appeals Council denied Conway's request for review of the ALJ's decision. The Appeals Council considered the additional evidence from Dr. Laaveg submitted after the hearing, but concluded that it did "not provide a basis for changing the Administrative Law Judge's decision." (R. at 5.)
III. ANALYSISA. Contents of the Record
Although not expressly outlined in his brief, Conway argues that the evidence he submitted after the hearing before the ALJ, but before the Appeals Council's decision, vitiates against a finding that the ALJ based his decision on substantial evidence. This evidence includes Dr. Laaveg's records of the amputation of the fifth ray on Conway's right foot and the doctor's functional capacity findings.
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 court finds that the Appeals Council considered the newly submitted evidence, (R. at 5), and therefore turns to a review of the record, including some speculation on how the ALJ would have weighed the post-hearing evidence.
B. Standard of Review
Conway argues that the decision of the ALJ was not supported by substantial evidence. Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings if they are supported by substantial evidence on 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).
C. 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. § 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).
As mentioned above, see supra Part II.B.4., the ALJ in the instant case followed this sequential process. He determined that Conway had not performed substantial gainful activity after the date he claimed a disability. Furthermore, although he found that Robbins suffered from severe impairments, he did not find that the impairments met or equaled one of the presumptively disabling impairments listed in the regulations. The sequential process ended in Conway's case when the ALJ concluded that he could perform his past relevant work as a sales representative.
D. Review of the ALJ's Decision
Conway argues that the ALJ's decision is not supported by substantial evidence. Specifically, Conway argues that the ALJ erred when he did not find Conway presumptively disabled. He also argues that the ALJ made improper factual findings regarding the extent that his impairments affected his residual functional capacity.
Whether Conway's impairments are presumptively disabling
Conway contests the findings by the ALJ that Conway's impairments did not rise to the level of one of the presumptively disabling impairments listed in the Social Security regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria." Marciniak v. Shalala, 49 F.3d 1350, 1353, (8th Cir. 1995) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1990)). Conway argues that his conditions fall under at least one the following impairments listed in the regulations: (1) diabetic neuropathy, (2) arthritis of a major weight bearing joint, (3) amputations or anatomical deformity, (4) obesity, and (5) degenerative diseases not listed elsewhere.
DIABETIC NEUROPATHY
To be presumptively disabled because of diabetic neuropathy, a claimant must demonstrate "significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station. . . ." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 9.08A. It is hard to discern the ALJ's finding on this issue. In his decision, the ALJ wrote that Conway did not meet "Listing 9.08, because the evidence fails to demonstrate significant and persistent disorganization of motor function in two extremities . . . ." (R. at 14.) One reading could be that the ALJ found that Conway failed to prove significant and persistent disorganization of motor function. Another reading is that Conway proved significant and persistent disorganization, but failed to prove it occurred in two extremities. The government agrees with the latter interpretation and argues that Conway does not meet the criteria of this listing because he only has problems with one extremity, his right foot.
Looking at the record as a whole, the court agrees with the government; Conway does not meet the criteria for the presumptively disabling impairment of diabetic neuropathy because he was not affected in two extremities. Conway suffered from diabetic ulcers in his left foot in 1991, but nothing in the medical evidence of record shows that those problems continued through his claimed period of disability. In fact, Conway's testimony at the hearing before the ALJ confirmed that he only had problems with his right foot.
ARTHRITIS OF A MAJOR WEIGHT BEARING JOINT
A finding of a presumptive disability due to arthritis of a major weight bearing joint requires:
[H]istory of persistent joint paint and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination. With:
A. Gross anatomical deformity of hip or knee . . .; or
B. Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint and return to full weight-bearing status did not occur, or is not expected to occur, within 12 months of onset.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.03.
At first glance, Conway's condition seems to meet the criteria for section 1.03. Further inspection of the regulations, however, reveals that a foot is not a "major weight bearing joint." Section 1.00D defines major joints, for the purposes of the Listing of Impairments, as the hip, knee, ankle, shoulder, elbow, or wrist and hand. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00D. This definition does not include Conway's condition because his arthritis affects only his foot and not any joint. Therefore, Conway does not meet the criteria for a presumptive disability due to arthritis of a major weight bearing joint.
AMPUTATIONS OR ANATOMICAL DEFORMITY
Conway also claims to be presumptively disabled due to amputations or anatomical deformity. Claimants who are presumptively disabled under this listing must have an amputation or anatomical deformity of both hands, both feet, or one hand and one foot. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.09. Conway is not presumptively disabled under this listing because Dr. Laaveg amputated only part of Conway's right foot.
OBESITY
In order to succeed on a claim for a presumptive disability due to obesity, the claimant must first meet the weight requirements listed in the Listing of Authorities. The applicable listing for a man of Conway's height, seventy two inches, is 336 pounds. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 9.09. Nothing in the medical record ever lists Conway as weighing 336 pounds, therefore he does not meet the criteria for the obesity listing.
Various reports in the record show that from March 1995 to September 1995, Conway's weight ranged from 276 pounds to 288 pounds. (R. at 91, 147, 201, 210-11.) Moreover, nothing from Dr. Laaveg's reports or from the hearing suggests that Conway's weight ever approached 336 pounds, the weight required by the Listing of Impairments for a finding of obesity for a man of Conway's height.
DEGENERATIVE DISEASES NOT LISTED ELSEWHERE
Conway's contention that he is presumptively disabled under the listing "Degenerative diseases not listed elsewhere" also must fail. Just as its title suggests, this listing applies only if the claimant suffers from a degenerative disease not listed anywhere else in the Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.17. The degenerative disease Conway suffers from, diabetic neuropathy, is enumerated in the Listing of Impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 9.08. Conway suffers from no other degenerative disease and thus cannot find relief under section 11.17.
Whether the ALJ made improper factual findings
Conway argues that the post-hearing evidence of Dr. Laaveg's reports and functional capacity findings require a finding by this court that the ALJ's decision is not based on substantial evidence. Part of the determination of whether the ALJ's decision rests on substantial evidence requires a review of the ALJ's findings regarding the claimant's subjective pain complaints. Conway claims that his subjective pain complaints, buttressed by the opinion of Dr. Laaveg, lead to the conclusion that he is disabled and unable to work. The Commissioner, on the other hand, argues that the ALJ properly discredited Conway's pain complaints, and that the ALJ's decision therefore relies on substantial evidence.
Conway's situation is somewhat different than the "average" subjective pain complaint situation. Conway's diabetes has caused his foot to be numb, thus preventing him from feeling pain. For the analysis, however, the court will continue to call his subjective complaints about his condition "subjective pain complaints," even though he essentially claims no pain.
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,
[T]he claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them. . . . 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. The court now turns to a review of the factors enumerated in Polaski in order to decide if the ALJ was correct in deciding not to credit Conway's pain complaints. As previously explained, see supra Part III.A., the review in this case is made more difficult by the fact that the court must speculate on how the ALJ would have treated the post-hearing evidence.
THE CLAIMANT'S PRIOR WORK RECORD
The ALJ properly noted Conway's "fragmented" work record as one factor weighing against Conway's credibility. See McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993) (finding ALJ properly considered claimant's "spotty" work record as factor in analyzing credibility of claimant's subjective pain complaints). To support his conclusion, the ALJ pointed out that Conway changed jobs frequently, and that, since 1981, Conway had "several years in which no earnings [were] reported, and numerous years with extremely low earnings." (R. at 16.)
THE CLAIMANT'S DAILY ACTIVITIES
The inconsistency between Conway's daily activities and his claims of pain was another factor on which the ALJ based his decision. Conway testified that sometimes he does the dishes and the laundry. He can drive himself to the grocery store, although he cannot carry the groceries themselves. He also cares for his daughter (who was under one year old at the time of the hearing). From these daily activities it was reasonable for the ALJ to conclude that Conway did not suffer from disabling pain. See Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996) (reasonable for ALJ to conclude claimant who walked four miles per day, did light housework, attended church, drove car, and took care of twenty-month old child not precluded from work at every exertional level).
THE DURATION, FREQUENCY, AND INTENSITY OF PAIN, AND PRECIPITATING AND AGGRAVATING FACTORS
In Conway's case, the two factors of: (1) duration, frequency, and intensity of pain, and (2) precipitating and aggravating factors, are more easily addressed simultaneously. Conway testified that his foot condition causes him many problems. He experiences further loss of feeling in the lower part of his leg from swelling. This loss of feeling then results in a loss of balance. He is therefore prevented from staying in one position too long. Nothing in the record substantially contradicts this testimony.
DOSAGE, EFFECTIVENESS AND SIDE EFFECTS OF MEDICATION
Conway took antibiotics for a substantial amount of time from March 1995 through July 1996, and again after the amputation of the fifth ray of his right foot in January 1997. Conway has reported no serious side effects from the medication. As noted earlier, Conway suffers from the lack of feeling rather than pain. The only indication in the record of pain medication comes from Dr. Laaveg's notes after Conway's surgery in January 1997, where Dr. Laaveg gave Conway a prescription for Lortab. (R. at 250.) Follow-up notes make no mention of whether Conway suffered from pain or whether he needed his prescription for the Lortab refilled.
FUNCTIONAL RESTRICTIONS
This is the factor most affected by the post-hearing evidence submitted by Conway. The ALJ, expressly noting that he based his residual functional capacity findings on the opinions of Dr. Creswell, Dr. Laaveg, and Conway's own testimony, concluded that Conway could perform a wide range of work in the sedentary to light ranges, but would require a sit/stand accommodation. He restricted Conway from repetitive activity on his feet. He also found that Conway could sit for thirty minutes, stand for thirty minutes, walk 200 feet, lift and carry objects weighing no more than fifteen pounds, and work in an environment with a moderate temperature. These findings mirror the findings made by Dr. Laaveg in a report and a letter he completed just before the hearing.
Dr. Laaveg's report and letter also included his opinion that Conway was "effectively eliminate[d] . . . from the job market." (R. at 241.) The ALJ, however, correctly noted that such a determination was not for a physician to make, but rather for a vocational expert. See Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995).
Because the ALJ relied so heavily on Dr. Laaveg's pre-hearing findings, it is not unreasonable to speculate that the ALJ would also have relied heavily on Dr. Laaveg's post-hearing findings. The court generally accords a treating physician's opinion substantial weight. Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). The opinion, however, "is not conclusive and must be supported by medically acceptable clinical or diagnostic data." Id. Dr. Laaveg's post-hearing findings are more restrictive than his pre-hearing findings. He restricts Conway from any repetitive bending or twisting. He also limits Conway's ability to stand or walk to five to ten minutes, with a maximum limit of thirty to forty minutes of standing or walking in an eight-hour period. Moreover, these findings are supported by the medical evidence operative note that Dr. Laaveg amputated the fifth ray of Conway's right foot and the progress notes thereafter. The fact that the post-hearing findings made by Conway's treating physician contain restrictions notably different from the pre-hearing findings leads to the conclusion that the ALJ's residual functional capacity findings might have been different. This conclusion gains added emphasis when analyzing the hypothetical the ALJ posed to the VE.
The Commissioner argues in his brief that Conway's own testimony belies Dr. Laaveg's opinion that Conway can stand or walk for only five to ten minutes at a time. (Com'r. Br. at 14.) The brief states that, "Dr. Laveeg (sic) opined in March 1997 that plaintiff could not stand for more than five or 10 minutes at once, plaintiff testified in August 1997 that he could stand and sit for 20 to 30 minutes at a time. (citation omitted)." Id. (emphasis added). Conway testified in August 1996, not August 1997. His testimony cannot be seen as inconsistent with Dr. Laaveg's opinion because between August 1996 and March 1997 Conway's fifth ray of his right foot was amputated.
Whether the ALJ's hypothetical was inaccurate and incomplete
An ALJ's hypothetical question must fully describe the plaintiff's impairments. See Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995) (citing Shelltrack v. Sullivan, 938 F.2d 894, 898 (8th Cir. 1991)). A hypothetical question is "sufficient if it sets forth the impairments which are accepted as true by the ALJ." See Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997); House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994). Only the impairments substantially supported by the record as a whole need be included in the ALJ's hypothetical. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)). If a hypothetical question does not encompass all relevant impairments, the vocational expert's testimony does not constitute substantial evidence to support the ALJ's finding of no disability. See id., at 1323 (8th Cir. 1996) (citing Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994)).
Because the court has found that the post-hearing evidence would have changed the ALJ's findings on Conway's functional capacity, the court must also find that the ALJ posed an inaccurate hypothetical to the VE. The hypothetical originally posed included the limitation that the claimant could not stand and/or walk for more than thirty minutes. An accurate hypothetical under the post-evidence findings would modify the limitation to limit the claimant to standing and/or walking for not more than five to ten minutes, with a maximum of thirty to forty minutes of an eight-hour workday, and to no repetitive bending or twisting. The original hypothetical did not list all the relevant impairments substantiated by the record as a whole, and therefore cannot constitute substantial evidence.
E. Whether the ALJ's Decision Should be Remanded
The Eighth Circuit requires the Secretary, where the ALJ has failed to fully develop the record, to reopen the case until the evidence is sufficiently clear to make a fair determination as to whether or not the claimant is disabled. Payton v. Shalala, 25 F.3d 684 (8th Cir. 1994) (citations omitted). Because of the lack of clarity in the record due to the post-hearing evidence's impact on residual functional capacity, this standard, therefore, requires that Conway's case be remanded.
IV. CONCLUSION
The ALJ's decision is not supported by substantial evidence. The contents of the record include the post-hearing evidence of Dr. Laaveg. Although this post-hearing evidence would not have changed the ALJ's determination of whether Conway was presumptively disabled under the Listing of Impairments, it would have changed the ALJ's determination about the credibility of Conway's residual functional capacity. From this record it is not clear whether Conway could return to his past relevant work as a sales representative. Furthermore, if Conway could not return to his previous work, the record is still not clear as to whether there exists other jobs in the national economy that the claimant can perform.
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, this case be remanded for further proceedings consistent with these findings.
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.