Opinion
Civ. No. 01-80 (ADM/JGL)
January 3, 2002
Emmett D. Dowdal, For Plaintiff. Michael R. Phillippe. Roylene A. Champeaux, Assistant United States Attorney, Defendant Jo Anne B. Barnhart.
REPORT AND RECOMMENDATION
Plaintiff Michael R. Phillippe seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), who found that Plaintiff was not entitled to a period of disability and disability insurance benefits. Plaintiff appeals pursuant to 42 U.S.C. § 405 (g). The parties have submitted cross motions for summary judgment. The matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. LR 72.1(c). For the reasons set forth below, it is this Court's recommendation that the Commissioner's decision should be affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Michael Phillippe was born July 27, 1953 (Tr. at 120.) Phillippe is a high school graduate and has training as a boiler worker. (Tr. at 142-43.) Phillippe worked as municipal maintenance worker for the city of Marshall, Minnesota. (Tr. at 155, 177.) Phillippe last worked on October 15, 1997. (Tr. at 47.) Phillippe stopped working due to four-way bypass surgery, herniated discs in his back, depression, and anxiety. (Tr. at 47, 125.)
Plaintiff Phillippe applied for a period of disability on October 20, 1997. (Tr. at 122.) Plaintiff Phillippe alleged a disability onset date of October 15, 1997. (Tr. at 120.) In his application, Plaintiff reported four way bypass surgery and herniated discs in his back as his disabling conditions. (Tr. at 125.) His application was denied initially and upon reconsideration. (Tr. at 101, 110.)
Plaintiff Phillippe next requested a hearing, which was held before an Administrative Law Judge ("ALJ") on November 30, 1998 (Tr. at 41.) Plaintiff was represented by counsel and testified. (Tr. at 43, 45-78.) A vocational expert ("VE"), Edward Utities, also testified. (Tr. at 79-96.) On March 17, 1999, the ALJ issued a decision finding Plaintiff not disabled. (Tr. at 32.)
The ALJ found that Plaintiff Phillippe was a "younger individual" who had not performed any substantial gainful activity since October 15, 1997. (Tr. at 31.) The ALJ found that Plaintiffs coronary artery disease, status post bypass surgery; degenerative disc disease of the lumbar spine; and anxiety disorder NOS were severe, but did not equal an impairment or combination of impairments listed in, or medically equal to, a listing in the Listing of Impairments. (Id.) The ALJ found Plaintiffs statements regarding his impairments and their impact on his ability to work not entirely credible. (Id.) In addition, the AM found that Plaintiff lacked the residual functional capacity ("RFC") to lift and carry more than thirty-five pounds frequently; perform repetitive push/pull activities with the upper and lower extremities; more than occasionally craw, climb, crouch, kneel; stand/walk more than one to two hours before resting; work in environments where he would be exposed to heat or humidity; perform work activities which would cause vibration; perform more than three or four step instructions; interact more than superficially with co-workers and the public; tolerate more than ordinary supervision; and perform more than unskilled work. (Id.)
The ALJ also found that although Plaintiff had semi-skilled work experience, he could not perform his past relevant work as a municipal maintenance worker. (Tr. at 31-32.) Although the ALJ found Plaintiff unable to perform the full range of sedentary, light, or medium work, the AM found that based on his age, education, work experience, and RFC, Plaintiff could make the adjustment to work which exists in the national economy. Examples of such work include such as wrapping/packaging jobs such as bander, cellophaner, poly packer, heat sealer, wrapping machine operator, and thirty other jobs of which there are 6000 in the state of Minnesota. (Tr. at 19, 32.) In addition, the ALJ found that Plaintiff could perform jobs in the area of reproduction services including collator operator, folding machine operator, inserting machine operator, and ten similar jobs of which there are 2900 in the state of Minnesota. (Id.) Thus, the ALJ found Plaintiff not disabled under the Social Security Act. (Id.)
Plaintiff sought review of the AM's decision by the Appeals Council and submitted new evidence with that application. (Tr. at 7, 14.) The Appeals Council denied review. (Tr. at 5.) The decision of the ALJ therefore became the final decision of the Commissioner. (Id.) Plaintiff Phillippe then sought judicial review of the ALJ's decision.
II. DISCUSSION
Plaintiff argues that the ALJ erred when he determined that Plaintiff retained the RFC to perform substantial gainful work activity. Specifically, Plaintiff argues that the ALJ abused his discretion by failing to adopt the opinions of Plaintiffs chiropractors and by failing to give appropriate weight to certain portions of the vocational expert's ("VE") testimony. In Plaintiffs motion for summary judgment, he requests an order reversing the decision of the ALJ and granting him benefits.
A. Scope of Review
Judicial review of the Commissioner's decision is limited to a determination of whether that decision is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405 (g); Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Substantial evidence is less than a preponderance, but is enough that a reasonable mind might find it adequate to support the ALJ's decision. See Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998). Where such evidence exists, a court is required to affirm the Commissioner's factual findings. See id. at 402; Turpin v. Bowen, 813 F.2d 165, 169 (8th Cir. 1987) (citations omitted).
The reviewing court must consider both evidence that supports and detracts from the Commissioner's decision. See Clarke v. Bowen, 843 F.2d 271, 272 (8th Cir. 1988) (citations omitted). The Court must review the administrative record and consider:
1. The credibility findings made by the AM.
2. The plaintiffs vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiffs subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of the plaintiffs impairments.
6. The testimony of vocational experts when required which is based upon a proper hypothetical question which sets forth the claimant's impairment.Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of the Dept. of Heath. Educ. and Welfare, 623 F.2d 523, 527 (8th Cir. 1980)).
B. The Sequential Analysis Used in the ALJ's Determination of Disability
Under the regulations, the disability determination requires a sequential analysis of a claimant's current work activity; the severity of impairments; and an assessment of the claimant's RFC in light of age, education, and work experience. See 20 C.F.R. § 404.1520 (a);Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If the claimant has an impairment that is included in or equal to an impairment in the Listing of Impairments, the claimant is considered disabled without consideration of age, education, or work experience. See Braswell, 733 F.2d at 533. However, if the claimant does not have a listed impairment, the AM will next consider the claimant's RFC in light of the claimant's past work and determine whether the claimant can still perform that work.See 20 C.F.R. § 404.1520 (e). If the claimant is unable to perform his or her past work, the burden shifts to the Commissioner to prove that the claimant retains the RFC to perform other work and that such other work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).
To implement the regulations, the Commissioner promulgated a five-step analysis to be followed by an AM in determining whether a claimant is disabled: (1) Has the claimant engaged in substantial gainful activity since the alleged onset of disability? (2) Is the claimant suffering from a severe impairment? (3) Does the claimant's impairment meet or equal a listing in the Listing of Impairments? (4) Does the claimant have the RFC to perform claimant's past relevant work? (5) If the claimant is unable to perform past relevant work, is there any other work in the national economy that he or she can perform? See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
At step one of the sequential evaluation, the ALJ found that Plaintiff Phillippe has not engaged in any substantial gainful activity since the alleged onset of disability. (Tr. at 20.) At step two, the ALJ found that Plaintiffs physical limitations due to his coronary artery disease, degenerative disc disease, and anxiety disorder were severe. (Tr. at 31.) The ALJ found Plaintiffs testimony concerning work-related limitations to be not fully credible. (Id.) At step three, the ALJ determined that Plaintiffs impairments did not meet or equal a listing in the Listing of Impairments. (Tr. at 20.) Thus, the ALJ turned to step four in the sequential analysis and determined that Plaintiff did not have the RFC to perform his past relevant work. (Tr. at 30.)
The ALJ next progressed to step five to determine whether Plaintiff retained the RFC to perform other work in the national economy. At this phase, the Commissioner has the burden of proving the existence of such jobs.
VE Edward Utities testified in response to the ALJ's hypothetical which incorporated all impairments to which Plaintiff testified at the hearing. (Tr. at 80.) VE Utities testified that with those impairments, it would be doubtful that Plaintiff could perform his past relevant work. (Id.)
The ALJ posited a second hypothetical to VE Utities which incorporated Plaintiffs age, education, past relevant work experience, and the complaints to which Plaintiff testified, who retained the RFC to lift fifty pounds occasionally and twenty-five pounds frequently; who could sit and/or walk about six hours in an eight hour work day, with normal breaks; who could sit for about six hours in a normal eight hour work day, with normal breaks; who would be limited in his ability to push and pull; who required no limits on climbing, balancing, stooping, kneeling, crouching, or crawling; and who experienced no manipulative, visual, communicative, or environmental limitations. The hypothetical person is someone who suffers from some anxiety disorders which manifest themselves in a slight degree of limitation regarding daily activities and social activities, often resulting in deficiencies of concentration, persistence or pace, and once or twice resulted in episodes of deterioration or decompensation in work or a work-like setting; whose ability to concentrate on, understand, and remember instructions is not significantly impaired; whose ability to carry out tasks with adequate persistence and pace would be mildly to moderately impaired, but adequate for routime, repetitive, three and four step, and limited detailed tasks, but not for multiple detailed or complex tasks; whose ability to interact and get along with co-workers and the public is moderately impaired, but adequate for brief and superficial contact; whose ability to sustain an ordinary routime without special supervision is not significantly impaired; whose ability to accept supervision would be moderately impaired, but adequate to cope with ordinary levels of supervision found in a customary work setting; and whose ability to handle stress would be moderately impaired, but adequate to tolerate the routine stressors of a routime, repetitive and a three and four step work setting. (Tr. at 81, 389-96, 406-17.)
Although the VE had trouble reading some of the notations regarding possible limitations on Plaintiffs use of his upper extremities, VE Utities stated that these limitations would "essentially allow for a full range of sedentary, light, and medium work" and "would not interfere with many unskilled types of jobs." (Tr. at 82.) VE Utities testified that although Plaintiff could not perform his past maintenance work, there would be jobs that such a hypothetical person could perform. (Tr. at 83.)
The ALJ again changed the hypothetical to incorporate all the limitations set out in hypothetical number two, but lifted the restrictions on the hypothetical person's ability to push and pull; limited the hypothetical person's ability to climb to frequently climbing stairs and to only occasionally climbing ladders, ropes, and scaffolds; and allowed the person to frequently balance, stoop, kneel, crouch, and crawl. (Tr. at 84, 397-405.) VE Utities testified that such a person would be able to perform the full range of medium work with the limitations previously indicated, including some unskilled work. (Tr. at 84.) As examples of work such a person could perform, VE Utities cited hand packager occupations, of which 4000 exist in Minnesota; conveyor tender, of which 300 jobs exist in Minnesota; packing floor worker, of which there are 400 positions in Minnesota; machine packagers, of which there are more than 5500 positions in Minnesota; jobs in the cleaning occupations, which include twenty-five to thirty different jobs, of which there are 1700 in the state of Minnesota.
The ALJ then modified the hypothetical to include the mental limitations from the third hypothetical and included the physical limitations described by Dr. Apostol. These limitations included the inability to sit for more than thirty minutes without moving; the inability to stand for more than five minutes without moving or changing positions; and the presence of some back pain and lower back stiffness. However, Dr. Apostol stated that Plaintiff could lift and carry up to fifty pounds, walk two miles a day, and use a screw driver and a hammer. (Tr. at 85, 320.) VE Utities testified that if the hypothetical person needed to move only short distances to accommodate the five minute standing limitation, he could still perform the jobs he testified to in response to the third hypothetical. (Tr. at 86.) However, if the person had to walk for ten feet or more on any consistent basis, VE Utities stated that most occupations would be "ruled out." (Tr. at 86.) VE Utities testified that the stand/ sit option would not be a problem in most jobs, but the need to walk far away from a work station would present a problem. (Tr. at 86-87.)
For his fifth hypothetical, the ALJ posited a person with the same mental capacities and limitations as the person in the fourth hypothetical, but used the limitations from a 1992 functional capacities assessment. (Tr. at 87.) The new hypothetical person could not carry more than forty-eight pounds, lift more than forty-five pounds in a "floor to knuckle" lift; lift more than forty-four pounds "knuckle to shoulder;" lift more than thirty-two pounds shoulder to overhead; engage in a sustained push of more than thirty-four pounds; or engage in an sustained pull of more than thirty-four pounds. (Tr. at 230.) The hypothetical person could work a full eight hour day riding in a dump truck, if allowed regular stretch breaks; could shovel light materials such as snow for five minutes at a time; and could not shovel heavy materials such as rocks or sand for more than one or two minutes. (Tr. at 230.) VE Utities testified that based on the portion of the assessment before him, the hypothetical person could perform sedentary and light work, and a partial range of medium work with a stand/sit option. (Tr. at 87.) Because part of the assessment was missing from the record, VE Utities stated that he was not comfortable making any more specific statements. (Tr. at 88.)
The ALJ posited a sixth hypothetical based on the opinions of Plaintiffs chiropractors in which the hypothetical person was limited to lifting five pounds, to standing/walking one hour in an eight hour day, and to sitting a total of one to two hours in an eight hour day. (Tr. at 420-21, 424-25.) In addition, the hypothetical person should limit his carrying and should not lift, twist, or bend. (Tr. at 421, 425.) VE Utities testified that these limitations would preclude full-time work. (Tr. at 88.)
The ALJ again changed the hypothetical based on the opinion of Plaintiffs treating physician, Dr. Willett. The new hypothetical person was limited to occasionally lifting thirty-five pounds, frequently lifting fifteen pounds, would need to rest after standing/walking one to two hours in an eight hour day, could sit for an unlimited period of time in an eight hour day, and should limit pushing/pulling. (Tr. at 422-23.) VE Utities testified that such a person could perform the full range of unskilled sedentary work and could perform light work, if Dr. Willett meant that the person could stand and walk for a total of more than one to two hours in an eight hour day, with breaks every one and one half to two hours. (Tr. at 89.) VE Utities testified that such a hypothetical person could perform jobs in the wrapping and packing categories, of which 6000 exist in Minnesota; and jobs in the reproduction services area, of which 2900 exist in Minnesota. VE Utities stated that although the assessment Dr. Willett completed asked for the total standing/walking time out an eight hour day, if one interpreted it to mean that Plaintiff could only stand/walk for a total of one to two hours in an eight hour day, the hypothetical person could not perform light work. (Tr. at 89.)
The ALJ then changed hypothetical number seven to incorporate the mental limitations from the second and third hypotheticals. (Tr. at 90.) VE Utities testified that the same unskilled simple jobs would be available to such a hypothetical person. (Tr. at 90.)
For his ninth hypothetical, the ALJ incorporated the physical limitations from the seventh and eight hypotheticals with the following workrelated mental limitations noted on an assessment form completed by Dr. Willett: good ability to follow work rules and use judgment; fair ability to deal with the public and co-workers, to function independently, and to maintain attention and concentration; a fair to poor ability to deal with supervisors; and a poor to no ability to deal work stress. (Tr. at 426.) VE Utities testified that although the hypothetical person has limited ability to deal with co-workers and the public, that, alone, would not rule out all jobs; however, since interaction with supervisors is required to some extent in all jobs, such a person would be unemployable. (Tr. at 91-92.)
With the ALJ's permission, Plaintiffs counsel modified the hypothetical to include a person with poor to no ability to deal with job stress. (Tr. at 94.) VE Utities stated that all jobs have some stressors and that before he could properly respond, he would want to know exactly with what work stressors the hypothetical person was dealing. (Tr. at 94-95.) However, VE Utities testified that if a person is unable to handle "routime stressors" such as getting to work on time, dealing with supervisors, or dealing with co-workers, he would probably be unemployable. (Tr. at 94.)
The ALJ concluded that although Plaintiff Phillippe was unable to perform the full range of sedentary, light, or medium work, he was capable of making an adjustment to work which exists in significant numbers in the national economy. (Tr. at 32.) Specifically, the ALJ found that Plaintiff Phillippe could perform wrapping/packaging jobs which number 6000 in Minnesota, and jobs in reproduction services which number 2900 in Minnesota. Therefore, the ALJ concluded that Plaintiff Phillippe was not disabled under the Social Security Act. (Tr. at 32.)
C. Whether the ALJ Erred in Finding That Plaintiff's Impairments Did Not Meet or Equal a Listed Impairment
Plaintiff argues that the AM erred when he found Plaintiff capable of engaging in substantial gainful activity. Specifically, Plaintiff asserts that the ALJ should not have disregarded the opinions of his treating chiropractors and the ALJ did not give appropriate weight to certain portions of the VE's testimony.
Defendant responds that the ALJ did not err by rejecting the opinions of Plaintiffs chiropractors because chiropractors are not specialists and are not acceptable medical sources under Social Security Administration ("SSA") regulations. Defendant further asserts that although the ALJ posited nine hypotheticals which included many different combinations of the conflicting medical evidence in the record, he did not err when he adopted the limits set forth in his seventh and eighth hypotheticals and the VE's testimony in response to those hypotheticals. Defendant argues that the ALJ gave appropriate reasons for rejecting the medical evidence he rejected and for adopting the evidence he adopted and therefore, his decision is supported by substantial evidence in the record.
1. Whether It Was Appropriate for the ALJ to Disregard the Opinions of Plaintiff's Chiropractors
In his decision, the ALJ stated that "[c]hiropractors are not specialists in physical medicine and as such their opinions and assessments are not afforded any weight." (Tr. at 30.) Plaintiffs chiropractors stated that Plaintiff would be unable to lift more than five pounds, that he could not sit for more than one to two hours in an eight hour work day, and that he could not stand or walk for more than one hour in an eight hour work day. (Tr. at 420 21, 424-25.) The ALJ went on to adopt the functional capacity assessment of Dr. Willett, Plaintiffs treating physician over the functional capacity assessments of Plaintiffs chiropractors. (Tr. at 30.) Plaintiff argues that although chiropractic is not considered an acceptable source of medical information to prove a disability, the ALJ should have considered the chiropractor's opinions regarding how Plaintiffs impairments affect his ability to work. Plaintiff further asserts that the chiropractors' opinions are supported by the opinion of Dr. Apostol, the independent medical examiner.
Defendant Commissioner responds that the ALJ properly discussed the opinions of the chiropractors and stated an appropriate reason for rejecting their opinions. Defendant further asserts that under SSA regulations, chiropractors are not acceptable medical sources and therefore the ALJ properly rejected their opinions.
Under SSA regulations, chiropractors are not acceptable medical sources who can establish whether a claimant is disabled. See 20 C.F.R. § 404.1513 (a). The ALJ need not give the opinion of an unacceptable source substantial weight. See Flaherty v. Halter, No. 00-788, 2001 WL 391545, at *2 (D. Minn. March 29, 2001) (citations omitted). However, the ALJ may consider the opinions of chiropractors to determine the severity of an impairment and how it affects a claimant's ability to work. See 20 C.F.R. § 404. 1513(d)(1). In this case, the ALJ referred to the chiropractors' opinions and rejected them stating that chiropractors are not specialists in physical medicine. (Tr. at 21, 29-30.)
The Court is satisfied that the ALJ properly rejected the opinions of Plaintiffs treating chiropractors and adopted the opinions of Plaintiffs treating physician regarding Plaintiffs physical limitations. The ALJ noted that although Plaintiff testified that he was never pain free, Plaintiff reported "no back pain" to a consulting physician. (Tr. at 27.) The ALJ also stated that Plaintiffs activities, which include hunting, cooking, and visiting with friends are inconsistent with his claims of debilitating pain and an inability to lift more than five pounds. (Tr. at 27.) Moreover, even if the opinions of the chiropractors were considered substantial evidence, the ALJ's conclusion to adopt the opinion of Dr. Willett is supported by substantial evidence. See Flaherty, 2001 WL 391545 at *2.
Implicit in the ALJ's decision is the fact that the opinion of Dr. Willett was not rebutted by any person whose opinion must be afforded greater deference. See 20 C.F.R. § 404.1513 (a) (failing to list chiropractors as acceptable medical sources); 20 C.F.R. § 404.1527 (d)(2) (stating that deference should be given to the opinion of a treating physician); 20 C.F.R. § 404.1527(d)(5) (stating that a specialist's opinion must be given greater weight than the opinion of a nonspecialist). In this case, the opinions of Dr. Willett, Plaintiffs treating physician, are supported by substantial evidence in the record as a whole. Contrary to Plaintiffs assertions, Dr. Apostol, an independent medical examiner who examined Plaintiff, did not opine that Plaintiff could not work. Rather, Dr. Apostol stated that Plaintiff should restrict his carting and lifting to fifty pounds, an amount greater than that specified by Dr. Willett, and should avoid repetitive motions or jarring of his lower back. (Tr. at 321.) Nothing in Dr. Apostol's assessment suggests the severe work limitations posited by Plaintiffs chiropractors. Dr. Apostol's assessment is much more in harmony with the opinion of Dr. Willett who concluded that Plaintiff could lift up to thirty-five pounds and could stand and walk for one to two hours at a time before resting. (Tr. at 422.) Moreover, two state agency reviewing physicians concluded that Plaintiff could carry fifty pounds occasionally and twenty-five pounds frequently, could stand/walk and sit about six hours in a normal work day. (Tr. at 389, 393.) One of the consulting physicians stated that Plaintiff had no postural limitations. (Tr. at 391.) The other consulting physician stated that Plaintiff was able to climb stairs, balance, stoop, kneel, crouch, and crawl frequently; and that he was to climb ladders, ropes, and scaffolds only occasionally. (Tr. at 399.)
In addition, the records from Plaintiffs chiropractors do not support the conclusions stated in their "Medical Assessment of Ability to Do Work-Related Activities (Physical)" forms. It is these forms which contain the limitations proffered by Plaintiff. Although Dr. Hoganson, one of Plaintiffs chiropractors, stated that Plaintiffs condition is acute and should be treated on an "as needed" basis, his objective examination notes consistently described Plaintiffs pain, discomfort, tenderness, swelling, and joint fixation as "mild," "slight," "moderate," and "minor." (Tr. at 432-43, 447.) In fact, there is only one notation in which Dr. Hoganson states that Plaintiffs physical examination revealed "a medium degree of pain." (Tr. at 432.) This note was made on the second of thirty visits documented by Dr. Hoganson. (Id.) In addition, Dr. Hoganson stated that during his last five visits, Plaintiff indicated that although his shoulder was still bothering him, his back pain was getting better. (Tr. at 442-43, 447.) Nowhere in Dr. Hoganson's treatment notes is there any indication that Plaintiff should restrict his lifting, sitting, or standing or that these activities caused Plaintiffs pain. (Tr. at 432-43.) The only mention of these restrictions is in Dr. Hoganson "s cursory "Medical Assessment of Ability to Do Work-Related Activities (Physical)" form.
The treatment notes of Dr. Tegels, Plaintiffs other chiropractor, also do not support his cursory conclusion that Plaintiff should not lift more than five pounds or sit more than one to two hours a day. Dr. Tegels' notes cover the period from June 1996 to June 1998. (Tr. at 450-59.) Dr. Tegels' notes merely recite Plaintiffs complaints and state that palpations were performed. There are no objective medical findings. Furthermore, even these brief notes confirm that during the months before his hearing Plaintiff felt his back pain was improving. (Tr. at 450-51.) In fact, in June 1998, Plaintiff returned to Dr. Tegels because he hurt himself when he "slipped under a fence . . . rather than walk to the gait [sic]." (Tr. at 459.) Such activity is inconsistent with an inability to "bend, twist, or be in a flexed position for more than a minute at a time." (Tr. at 425.) None of the jobs suggested by the AM would require such rigorous contortions. (Tr. at 32.) It should be noted that Plaintiff quickly recovered from sliding under the fence. (Tr. at 459.)
Generally, a treating physician's opinion is to be given controlling weight by the ALJ. See Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). Accordingly the Court finds that the ALJ properly adopted the treating physician's opinions regarding Plaintiffs physical limitations rather the opinions of Plaintiffs chiropractors. Dr. Willett's opinion is supported by Dr. Apostol and by Plaintiffs testimony and statements regarding his abilities. (Tr. at 54, 57, 65, 68, 315.)
It is the very job of the ALJ to sort out conflicting evidence and the Court declines to recommend that the ALJ's findings be reversed simply because there is evidence in the record which could support a different conclusion. See Roberts v. Apfel, 222 F.3d 466, 468 (8th Cir. 2000).
2. Whether the ALJ Adopted the Appropriate Testimony of the VE
Plaintiff argues that the ALJ erred when he adopted the VE's conclusions based on hypotheticals seven and eight. Plaintiff argues that the ALJ should have adopted the mental RFC posited by Dr. Willett. This RFC was incorporated into hypothetical number nine. VE Utities testified that a hypothetical person with this mental RFC may be unemployable. (Tr. at 91 92.)
Defendant Commissioner responds that the ALJ properly adopted the VE's conclusions which were based on the hypotheticals containing the limitations which the ALJ found credible. Defendant asserts that the ALJ was not required to accept the mental restrictions stated by Dr. Willett because Dr. Willett is not a mental health specialist and because the mental health restrictions adopted by the ALJ are supported by the record.
At the administrative hearing, the ALJ posited nine hypotheticals which included various combinations of the conflicting medical evidence in the record. (Tr. at 80-93.) In addition, Plaintiffs Counsel modified the ninth hypothetical and VE Utities responded to that modification. (Tr. at 93-95.)
Plaintiff argues that under all nine hypotheticals, the VE either found Plaintiff unable to perform substantial gainful employment or was unable to form an opinion at all. Plaintiff asserts that this testimony demonstrates that Plaintiff is unable to work and that the ALJ's finding that he could engage in substantial gainful employment is an abuse of discretion. The Court will address each hypothetical separately.
a. Hypothetical One
Plaintiff asserts that in response to hypothetical one, which incorporated all the limitations to which Plaintiff testified at the hearing, the VE stated that it was "doubtful [Plaintiffi could work on a competitive basis." This is true. However, Plaintiff fails to acknowledge that the ALJ found Plaintiffs testimony regarding his impairments and their effect on his ability to work not credible. (Tr. at 31.) Plaintiff does not rebut this finding. Therefore, the ALJ properly rejected the VE's response to this hypothetical. See Whitmore v. Bowen, 785 F.2d 262, 263-64 (8th Cir. 1986) (stating that a hypothetical question must precisely and comprehensively set forth every physical and mental impairment of the applicant that the AM accepts as true and significant.)
Plaintiff does not take issue with the ALJ's credibility determination or Polaski analysis.
b. Hypothetical Two
Plaintiff argues that VE Utities could not answer hypothetical two. The Court disagrees. Although the VE had trouble reading some of the medical records regarding possible limitations on the use of the hypothetical person's upper extremities, he stated that a person with the limitations described in the second hypothetical would be "essentially" able to perform a full range of sedentary, light, or medium work and many unskilled jobs. (Tr. at 82.) This is contrary to Plaintiffs contention that VE Utities found Plaintiff unable to perform work under all the hypotheticals.
c. Hypothetical Three
Plaintiff argues that when VE Utities testified that the person in hypothetical number three would not be able to perform all jobs within the medium range of unskilled work, he meant that Plaintiff would be unable to perform substantial gainful activity. The Court disagrees. Although VE Utities stated that the third hypothetical person could not perform all unskilled medium work, VE Utities gave several examples of medium and light unskilled jobs which such a person could perform. (Tr. at 84-85.) Plaintiffs selective quoting from the record fails to acknowledge the VE's testimony in which he stated a person with these limitations was able to perform substantial gainful activity.
d. Hypothetical Four
Plaintiff quotes the following statement by the VE: ". . . concern I would have is the aspect of this hypothetical talking about standing for five minutes . . . most occupations would be ruled out." (Pl. Mem. at 3) (ellipses in original). Plaintiff offers this testimony as proof that VE Utities found Plaintiff unable to work. The Court disagrees.
VE Utities testified that there are two ways to interpret Dr. Apostol's limitations which were incorporated into this hypothetical. (Tr. at 86.) The VE stated that if one interprets the inability to stand for more than five minutes "unless he moves around" (Tr. at 320), as a need to just move short distances from a work station, the hypothetical person could still perform the jobs the VE listed in response to the third hypothetical. (Tr. at 86.) If, however, one were to interpret this as a need to walk ten feet or more on a consistent basis, VE Utities testified that most occupations would be "ruled out." (Id.)
Plaintiff would have the Court disregard half of the VE's response to this hypothetical. Since the Court has already found that the ALJ's adoption of Dr. Willett's physical RFC was reasonable, the Court also finds it was reasonable for the ALJ to adopt the portion of the testimony which was more in concert with that RFC. It is noteworthy that the physical RFC adopted by the ALJ contained more stringent restrictions on lifting than those posited by Dr. Apostol. In this case, no one is absolutely certain what Dr. Apostol meant by "move around." However, given the fact that Dr. Apostol does not list the need to avoid standing in the "Recommendations" section of his notes and does not state that Plaintiff must walk every five minutes, it was reasonable for the AM to discount the possibility of a need to walk far away from a work station and to disregard the VE's testimony regarding that need.
e. Hypothetical Five
Plaintiff argues that VE Utities was unable to respond to hypothetical five. The Court disagrees. VE Utities only testified that since part of the assessment was missing from the record, he could not be very specific. (Tr. at 88.) However, VE Utities testified that a person with the limitations in hypothetical five would qualify for sedentary light and medium work with a sit/stand option. VE Utities merely testified that the missing R33 form would make it "easier" for him to "decipher what those results show," not that he was unable to answer the question at all. (Tr. at 87.) Again, VE Utities testified that under this hypothetical and the available evidence, the hypothetical person would be capable of performing some work. (Id.) Instead of refusing to respond, the VE simply declined to speculate beyond what was written in the medical records.
f. Hypothetical Six
Plaintiff argues that the VE's response to this hypothetical proves that Plaintiff is unable to perform substantial gainful activity. Hypothetical six incorporated the limitations stated by Plaintiffs chiropractors in their "Medical Assessment of Ability to Do Work-Related Activities (Physical)" forms. VE Utities testified that a person with these limitations would be unable to work on a full time basis. (Tr. at 88.) The Court has already found that the ALJ properly rejected these assessments. Therefore, the ALJ did was correct in failing to adopt this portion of VE Utities' testimony.
g. Hypothetical Seven
Plaintiff argues that the following testimony by VE Utities demonstrates that Plaintiff is unable to work: "[I]f the doctor means a person would only be able to be on their feet, standing and walking, for up to one to two hours, then that would normally not allow for light work. . . . [B]ut again, I'm not sure . . . how to interpret that." (Pl. Mem. at 3) (ellipses in original). This hypothetical was based on the physical RFC stated by Dr. Willett. Dr. Willett stated that Plaintiff could work "one to two hours before resting" in an eight hour day. VE Utities testified that if one interpreted this limitation as allowing a person to be on their feet for a total of one to two hours a day, the hypothetical person could perform the full range of unskilled sedentary work. (Tr. at 89.) VE Utities further testified that if one interpreted this statement to mean that the hypothetical person stand or walk for more than two hours in an eight hour day, with a break every one and one half to two hours, this person could also perform light work. (Id.) No matter which interpretation of the assessment one adopts, Plaintiffs arguments that the VE failed to respond or that the VE's testified that Plaintiff could not work are without merit. The VE plainly testified that Plaintiff could either perform unskilled sedentary work or unskilled light work.
h. Hypothetical Eight
Plaintiff proffers VE Utities' testimony that "I would certainly fall away from the three, four step parameter" as meaning that Plaintiff could not perform substantial gainful activity under this hypothetical. The Court disagrees. Contrary to Plaintiffs assertions, VE Utities testified that this hypothetical person could perform unskilled simple jobs, rather than unskilled three and four step jobs. The VE did not testify that this hypothetical person would be unable to work.
i. Hypothetical Nine
Plaintiff argues that the ALJ should have based his decision on hypothetical nine. Hypothetical nine and Plaintiffs Counsel's modification were based on the mental RFC evaluation of Dr. Willett. In that RFC evaluation, Dr. Willett stated that Plaintiff has a fair to poor ability to deal with supervisors and poor to no ability to deal with work stress. VE Utities testified that a person who could not deal with supervisors would be unemployable. (Tr. at 91-92.) VE Utities also testified that a person who is unable to handle routime stressors" such as arriving at work on time and dealing with coworkers and supervisors would be unemployable. (Tr. at 94.)
j. Whether the ALJ Properly Rejected Dr. Willett's Mental RFC
The Court has found Plaintiffs arguments regarding hypotheticals one through eight without merit. Therefore, it is only necessary to address Plaintiffs argument regarding hypothetical nine and the modification posited by Plaintiffs counsel at the administrative hearing. If the ALJ's decision to adopt the limitations incorporated into hypotheticals seven and eight is supported by substantial evidence in the record, the ALJ's decision must be affirmed. Implicit in Plaintiffs argument that VE Utities' testimony in response to hypothetical nine and its modification proves Plaintiff is unable to work, is the argument that the AM should have adopted Dr. Willett's mental RFC instead of the RFC of state agency medical consultants. Plaintiff fails to cite any evidence in the record which conflicts with the ALJ's decision or which would support his contentions.
Once the ALJ found that Plaintiff could not perform his past relevant work, he needed to solicit testimony from a VE regarding jobs Plaintiff could perform. The ALJ conducted a thorough examination of VE Utities and posited an extraordinary number of hypotheticals which included all the conflicting evidence in the record. Since much of the evidence in the record was conflicting, the ALJ had to adopt the evidence he found most credible, posit a hypothetical based on that evidence, and then rely on the responsive testimony of the VE. See Whitmore, 785 F.2d at 263-64. The Court finds that the ALJ properly did this.
The ALJ adopted the mental RFC of the state agency medical consultants. (Tr. at 25.) In so doing, the ALJ stated his reasons for adopting those opinions and rejecting the opinion of Dr. Willett regarding Plaintiffs mental capacities. (Tr. at 24-27.) The ALJ concluded that Dr. Willett's statement that Plaintiff could not handle the stressors of work were not supported by his own records, by Plaintiffs activities, or by the record as a whole. (Id.) Specifically, the ALJ noted inconsistencies in Dr. Willett's notes regarding Plaintiffs ability to get along with co-workers and the fact that although Dr. Willett has prescribed Plaintiff antidepressants, Plaintiff has never been referred to a mental health professional. (Tr. at 24-25.) Furthermore, the AM stated that the record demonstrates that Plaintiff is able to interact with people on a daily basis. (Tr. at 25.) The ALJ noted that the only psychological examination in the record demonstrated that Plaintiff had the ability to tolerate the routime stressors of a routime, repetitive, and three and four step work setting and that a psychologist found that Plaintiff possessed the mental and personal skills to succeed in a work environment. (Tr. at 24-25.)
Although a treating physician's opinions are to be given controlling weight, an ALJ may disregard the opinion of a treating physician if that opinion is inconsistent with the weight of other medical opinions or if the physician has provided inconsistent opinions. See Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). The record supports the ALJ's conclusions. First, Dr. Willett is not a mental health specialist. See 20 C.F.R. § 404.1527(d)(5). Second, Dr. Willett's statements are inconsistent in that his treatment notes do not support his conclusions regarding Plaintiffs inability to work with supervisors and handle work stresses. Third, Plaintiffs statements regarding his work history and ability to work with others are inconsistent with the severe limitations posited by Dr. Willett. Fourth, the ALJ's findings are supported by evidence in the record as whole, specifically, the opinion of Ms. Jorgensen, a licensed psychologist, and the consulting state medical consultants.
Dr. Willett's treatment notes fill thirty-nine pages in the record. (Tr. at 322-359, 364.) In those thirty-nine pages, the Court could find only seven notes relating to Plaintiffs work stress. (Tr. at 325, 327, 328, 330, 331, 332.) On May 28, 1997, Dr. Willett noted that when Plaintiff has to repeat work that the city has already done, the anxiety "wear[s] on him." (Tr. at 332.) On the same date, Dr. Willett discouraged Plaintiff from quitting work, stating that he would rather try to treat Plaintiffs depression. (Tr. at 330-31.) At that time, Dr. Willett prescribed Prozac for Plaintiff. (Tr. at 330.) On July 23, 1997, Dr. Willett stated he discouraged Plaintiff from applying for disability because Plaintiff would "feel better mentally and psychologically" if he worked, rather than if he stayed at home. (Tr. at 328.) On October 13, 1997, Dr. Willett noted that Plaintiff was having trouble with his "present supervisor" at work. (Tr. at 327.) This "strife" caused Plaintiff to be angry and frustrated. (Id.) On January 14, 1998, after Plaintiff had quite working, Dr. Willett stated that Plaintiff was not experiencing as much stress as in the past. (Tr. at 325.)
None of these statements supports Dr. Willett's conclusion that Plaintiff has poor to no ability to deal with work stressors and supervisors. (Tr. at 426.) In fact, Dr. Willett's contemporaneous explanation of his conclusions state that Plaintiff experienced difficulties dealing with prior supervisors. (Id.) This does not indicate that Plaintiff will be unable to function under other supervisors. In addition, there is nothing in Dr. Willett's treatment notes to support the conclusion that Plaintiff experienced difficulties with more than one supervisor. Dr. Willett seems to base his conclusion on the fact that Plaintiff told him he has had difficulty with co-workers and supervisors. (Id.) However, this statement contradicts Plaintiffs other statements and testimony. (Tr. at 53, 315.) In addition, in the same document Dr. Willett stated that Plaintiffs ability to make occupational adjustments, performance adjustments, and personal-social adjustments all fell within the fair to good range. (Tr. at 426-27.)
At the hearing, Plaintiff stated that he left his job because he "couldn't take working with the boss [he] had." (Tr. at 53.) Plaintiff reported to Ms. Jorgensen, a licensed psychologist, that he had no problems with fellow coworkers when he was working, and that he had difficulties with only one supervisor. (Tr. at 315, 318.) In addition, Plaintiff testified that he goes out for coffee with friends once or twice a day and visits with his brother-in-law once or twice a month. (Tr. at 58-60, 64-65.) These statements are inconsistent with Plaintiffs hearing testimony that he has difficulty coping with people, supervisors, and jobs. (Tr. at 47.) These statements also fail to support the conclusion that Plaintiff would have difficulty dealing with a different supervisor or with work stresses. Plaintiff worked at the same job for twenty years. (Tr. at 52.) During all that time, Plaintiff must have successfully dealt with some job stresses. In fact, work consultant Gwen Hendricksen stated that Plaintiff successfully dealt with stresses at the car wash he used to own and with the "personality clash" he experienced with his supervisor. (Tr. at 259-60.) Furthermore, the record indicates that antidepressants significantly help Plaintiffs anxiety and mood. (Tr. at 314, 316, 327, 329.)
In January 1998, Ms. Leeann Jorgenson, a licensed psychologist, examined Plaintiff and concluded that he possessed the mental capabilities and personal skills necessary to succeed in a work environment. (Tr. at 318.) This opinion is consistent with the opinions of the state medical consultants. Furthermore, the record contains two statements which support the conclusion that Plaintiff has no desire to return to work. (Tr. at 318, 327.)
The Court finds that the ALJ stated appropriate reasons for adopting the opinions of the state medical consultants and rejecting the mental RFC posited by Dr. Willett. Therefore, the ALJ's adoption of the mental limits set forth in the assessments of the state agency medical consultants supported by the record as a whole. These limitations were incorporated into hypotheticals seven and eight. The ALJ properly supported his conclusion to adopt these limitations and therefore, the VE's testimony in response to these hypotheticals constitutes substantial evidence in the records as a whole. See Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996); Nevland, 204 F.3d at 858 (stating that the opinion of a consulting physician who examines claimant will constitute substantial evidence in the record as a whole upon which an ALJ may base a hypothetical).
3. Whether Additional Evidence Submitted to Appeals Council Would Change ALJ's Decision
Plaintiff submitted new evidence when he sought review of the ALJ's decision by the Appeals Council. (Tr. at 467-89.) Defendant argues that this evidence would not change the ALJ's decision. Plaintiff does not rebut this argument or even mention it in his motion papers.
"New evidence presented to the Appeals Council is relevant only to the extent that it describes the claimant's condition prior to the date of the AM's decision." Sullivan v. Lockhart, 958 F.2d 817, 823 n. 5 (8th Cir. 1992) (citing 20 C.F.R. § 404.970 (b)). Therefore, the evidence from 1999 will not be considered. The other evidence submitted to the Appeals Council consists of 1993 psychotherapy notes and evaluations. (Tr. at 476-77.)
The Court finds that this evidence would not change the ALJ's decision. First, the evidence was five years old by the hearing date. There is more recent evidence in the record which states that Plaintiffs depression responds well to drug therapy. (Tr. at 314, 316, 327, 329.) Second, the 1993 therapy notes indicate that, even at that time, Plaintiff was experiencing relief from his symptoms. (Tr. at 471-73, 476.) In addition the therapy notes state that Plaintiff does not seem motivated to change his behavior or to improve his life. (Tr. at 476-77.) This new evidence is not sufficient to overcome the AM's decision.
In conclusion, the Court finds the ALJ's decision in this case supported by substantial evidence in the record as a whole and recommends that Plaintiffs motion for summary judgment be denied and that Defendant's motion for summary judgment be granted.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED:
(1) Plaintiff Michael R. Phillippe's Motion for Summary Judgment (Doc. No. 11) should be DENIED; and
(2) Defendant Commissioner's Motion for Summary Judgment (Doc. No. 16) should be GRANTED.
Under D. Minn. LR 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court and serving all parties by Jan. 22, 2002 a writing which specifically identifies those portions of this Report to which objections are being made and the basis of those objections. A judge shall make a de novo determination of those portions to which objection is made. Failure to comply with this procedure may operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals. A party may respond to the objecting party's brief within ten days after being served with it. All briefs filed under this rule shall be limited to ten pages.