Opinion
No. C 97-3078-MWB.
March 11, 1999.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On August 8, 1997, the plaintiff filed a complaint (Doc. No. 1) appealing an administrative law judge's ("ALJ") denial of her applications for disability insurance benefits and for supplemental security income ("SSI") benefits pursuant to the Social Security Act. See 42 U.S.C. § 401 et seq; 42 U.S.C. § 1381 et seq. The defendant filed an answer (Doc. No. 5) to the complaint on December 23, 1997. On January 23, 1998, the plaintiff filed a brief in support of her complaint (Doc. No. 8). The defendant filed a brief on April 14, 1998 (Doc. No. 11). 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.
II. BACKGROUND A. Procedural History
Plaintiff Kathy J. Robbins ("Robbins") protectively filed applications for SSI and disability insurance on February 8, 1994, and February 17, 1994, respectively. The applications were denied initially on March 30, 1994, and were not pursued. Robbins re-applied for SSI on January 24, 1995, and for disability insurance benefits on February 6, 1995. This set of applications was denied initially on March 17, 1995, and denied upon reconsideration on June 8, 1995. Pursuant to Robbins' request, ALJ Thomas M. Donahue held a hearing on the applications on June 11, 1996. Attorney Dan Wilmuth appeared on behalf of Robbins. Robbins and vocational expert ("VE") Carma Mitchell presented testimony at the hearing. On October 2, 1996, the ALJ entered a decision affirming the denial of benefits. The Appeals Council denied Robbins' request for review of the ALJ's decision on June 11, 1997, thus making the ALJ's decision the final decision of the Commissioner of Social Security. On August 8, 1997, Robbins timely filed the present complaint seeking review of the final decision of the Commissioner of Social Security (Doc. No. 1).
B. Factual History Introductory facts and plaintiff's daily activities
At the time of the hearing before the ALJ, Robbins was forty-three years old. She graduated from high school in 1970 and completed a six week nurse's aide course at a community college in 1972. Until January 1984, Robbins worked as a nurse's aide at a nursing home and at a hospital. From January 1984, through May 1989, she worked variously as a waitress, a waitress supervisor, and a home health aide for a diabetic man.
In February 1992, Robbins returned to work at a nursing home, where she was required to lift 200 to 300 pounds daily. Robbins injured her back in April 1992, and subsequently had lumbar laminectomy. She returned to work in February or March 1993, but left again in April of the same year after re-injuring her back while lifting a patient. Robbins elected to have a second lumbar laminectomy in August 1993. She tried to return to work at the nursing home after her second back surgery, but claims that she was not able to do so because of pain in her back.
In June 1994, Robbins began working as a part-time cashier at a convenience store. She left this position in August 1994, complaining of pain in her back. From November 1994 to January 1995, Robbins worked as a full-time cashier at a different convenience store, and again cited back pain as her reason for leaving. Robbins started looking for a new job in January 1996, and obtained a waitress position in May of the same year. She testified that she did not start looking for work until January 1996 because "I was starting to feel some better and felt that I could try to go back to work, and also because of finances." (R. at 52.)
Robbins claims a period of disability due to back pain, disc problems, and arthritis starting on April 12, 1993, the date on which she re-injured her back while working at a nursing home, and ending in January 1996, when she began looking for her current job as a waitress. During this period of disability, Robbins alleges that she was unable to perform her past work as a nurse's aide or as a waitress because she could not perform the required lifting and she could only stand for fifteen to twenty minutes at a time before back pain forced her to sit or lie down for a half-hour to an hour.
During the period of her claimed disability, Robbins was sometimes able to fix meals for her family, perform general housework, and walk her dog, but stated that she would have to rest between these activities and that she sometimes received help from friends and family. Robbins indicated she had trouble walking or sitting for long periods of time, and also had trouble climbing the stairs in her two-story house.
Vocational expert's testimony
Vocational expert ("VE") Carma Mitchell testified at the June 11, 1996 hearing. The ALJ asked the VE the following hypothetical question, explaining that his question was based on a claimant of Robbins' age, education, and work experience:
I'd like to ask you a hypothetical question. . . . age 44, female, 12th grade education, past relevant work as set forth in Exhibit 40 [past relevant work summary]. Lifting up to 20 pounds occasionally, ten pounds frequently. Sitting, standing and walking up to two hours at a time, with six hours of an eight hour work day for each of those three separate items. Only occasional climbing of stairs, balancing, stooping, kneeling, crouching, crawling, and bending. Based on this hypothetical, could the claimant do any of her past relevant work?
(R. at 62.) The VE responded that Robbins would just be able to perform the home health aide position.
The VE also testified as to whether Robbins, given the hypothetical characteristics listed above, would have any transferable skills to apply to other jobs. The VE stated that Robbins could find work as a blind aide/companion, a service establishment attendant, and a recreational facility attendant. She further stated that Robbins could perform unskilled work, and gave examples of jobs such as photocopy machine operator, parking lot attendant, cashier, and survey worker.
The VE then responded to a question from Robbins' attorney, who asked whether back pain which forced the person to lie down for up to one hour per day, in addition to the other restrictions in the ALJ's hypothetical question, would effect the person's ability to perform these jobs. The VE answered that "if that were necessary during the eight-hour workday, it would eliminate competitive employment." (R. at 65.)
Robbins' medical history
Robbins' relevant medical history begins in August 1988, after her involvement in a motorcycle crash. After the crash, she went to Trinity Regional Hospital in Fort Dodge, Iowa for an examination, complaining of low back pain. X-rays revealed no fractures or dislocations, and her treating physician diagnosed no muscle strain. The physician recommended bed rest, ice, and Motrin. (R. at 220-221.)
Robbins saw Christopher Luck, P.A., on four occasions, once in 1984 and three times in 1988. Luck noted that Robbins never complained of arthritis at any of the visits. Robbins also saw Don R. Schwendemann, D.C., on three different occasions following the motorcycle accident, twice in 1987 for back pain, and once in 1988. On January 23, 1989, Robbins saw E.F. Brown, M.D., whose impression was that Robbins suffered from low back pain secondary to an injury from a motorcycle accident.
On April 8, 1992, Robbins visited the Fort Dodge Medical Center after feeling a "pop" and subsequent pain in her back while lifting a patient at work. X-rays revealed a trace of left-sided scoliosis. Robbins returned on April 13, 1992, and reported that her back pain was better. Doctors recommended a CT scan and advised Robbins to remain off work for two weeks. The CT scan showed Robbins had degenerative disc disease and a bulging lumbar disc. In a follow-up visit regarding her back pain, Samir R. Wahby, M.D., noted no neurological findings, but scheduled Robbins for an MRI and a subsequent examination. Dr. Wahby saw Robbins on May 1, 1992, and told her that the MRI was "normal." Dr. Wahby then scheduled Robbins for a lumbar myelogram to determine if an impinged nerve was causing her back problems. Because the myelogram showed no nerve impingement, Dr. Wahby, on May 14, 1992, proceeded with conservative treatment, including a prescription for Voltaren and an excuse from work until further notice. He also recommended Robbins perform no heavy lifting or heavy work. On May 28, 1992, Dr. Wahby examined Robbins, and seeing no improvement, prescribed physical therapy to treat Robbins' back problems.
Robbins continued with physical therapy for several weeks, and began to show improvement. In an examination on July 6, 1992, Dr. Wahby noted the improvement in Robbins' condition and recommended that she continue with physical therapy, but Robbins returned on September 22, 1992, complaining of increased pain. Dr. Wahby, again noting no neurological findings, gave her a prescription for Voltaren and recommended no heavy lifting or heavy work. Dr. Wahby saw Robbins on October 6, 1992, for a follow-up visit, and he observed that Robbins' pain was getting worse. He therefore scheduled her for another CT scan. The CT scan showed Robbins had a possible impingement at the L4-5 and L5-S1 levels. Dr. Wahby then scheduled Robbins for another myelogram. Although the myelogram showed no herniated discs, it revealed diverticulae arising from nerve roots at the L3-4, L4-5 and L5-S1 levels.
After weighing her options of conservative treatment or a lumbar laminectomy, Robbins decided on the latter. Dr. Wahby performed the procedure and removed the impingement on October 23, 1992. A few days after the operation, Dr. Wahby's notes reflect that Robbins was doing "extremely well," that her leg pain had completely subsided, and that she had started ambulating. He discharged her on October 27, 1992, with a prescription for Darvocet-N, for pain. Robbins saw Dr. Wahby three times for follow-up examinations over the next three months. At each visit, Dr. Wahby noted Robbins was doing very well and was gaining increased range of motion. Dr. Wahby recommended no heavy lifting during this time period, but gave Robbins a slip to return to work on March 4, 1993.
Robbins returned to work, but on April 22, 1993, again hurt her back while lifting a patient. Robbins saw Dr. Wahby the next day and complained of lower back pain that radiated to her left lower extremity. Dr. Wahby instructed Robbins to return for an examination after taking a week off from work. He also informed her that if the pain persisted, he would schedule her for a myelogram. Robbins returned on April 30, 1993, and told Dr. Wahby that the pain in her lower extremity occurred only at night. Dr. Wahby gave her a prescription for Relafen and told her to return in two weeks. Dr. Wahby saw Robbins at her follow-up on May 14, 1993, and after noting her continuing pain, scheduled her for a CT scan. Dr. Wahby discussed the results of the CT with Robbins on May 28, 1993, and told her the test showed a herniated disc which might require another laminectomy. He also told her that in the meantime they would treat the problem conservatively and hope the pain would subside without surgical intervention. After an examination on July 29, 1993, that revealed no improvement, Dr. Wahby scheduled Robbins for a myelogram the following week.
Robbins canceled the scheduled myelogram for personal reasons, but saw Dr. Wahby on August 13, 1993, and told him she wanted to skip the myelogram and proceed straight to surgery. Dr. Wahby consented and successfully performed a second laminectomy on Robbins on August 26, 1993. Robbins then saw Dr. Wahby from September 1993 through January 1994 for follow-up visits. At each visit, Dr. Wahby noted that Robbins' pain was subsiding, but recommended she do no heavy lifting. At the January 1994 visit, in response to Robbins' inquiry about returning to work, Dr. Wahby consented, but limited her to sedentary work with a twenty pound lifting limit.
Robbins returned to work at the nursing home. However, in a February 1994 visit to Dr. Wahby, she explained that her attempts to return to work at the nursing home had failed. She stated that she tried to work but that her back pain continued to bother her. In his notes from the visit, Dr. Wahby wrote "[t]he patient said that she quit working and she contacted Workmens Comp and she told them that she does not want to go back to work again. . . ." (R. at 250.) Dr. Wahby gave Robbins a prescription for ibuprofen, which Robbins said helped her pain.
Dr. Wahby did not see Robbins again until almost a year later, on January 17, 1995, and then again in May 1995. At the January visit, Robbins told Dr. Wahby that she injured her back while mopping the floor and complained of lower back pain that radiated to her left buttock. Dr. Wahby gave Robbins a slip to stay off work for one week, and a prescription for Ansaid. At the May visit, Robbins complained of low back pain. Dr. Wahby noted no neurological findings, gave Robbins a prescription for Voltaren, and told her not to do any heavy lifting or twisting.
The ALJ's conclusion
In his decision, the ALJ 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 although Robbins worked during the time she claimed disability, those work efforts were "unsuccessful work attempts," and therefore did not preclude automatically a finding of no disability. See Social Security Ruling 84-25, 1984 WL 49799 (1984). The ALJ then found that the medical evidence established that Robbins' low back pain constituted a "severe impairment" as that term is defined in the Social Security Regulations. The ALJ found that Robbins 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 Robbins' impairments did not prevent her from returning to her past work as a nurse's aide. He also found that Robbins had the residual functional capacity for "light" work and possessed transferrable skills for "semi-skilled," or "unskilled" work. The ALJ concluded that Robbins was not under a disability and therefore not entitled to benefits.
III. ANALYSIS A. The Substantial Evidence Standard
Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings, provided they are supported by substantial evidence in the record as a whole. Kelley v. Callahan, 133 F.3d 583, 587, (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401, 91 S. Ct. at 1427; accord Ellison, 921 F.2d at 818.
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if after reviewing the evidence the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).
B. Disability Determination and the Burden of Proof
Section 423(d) of the Social Security Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when he is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88, (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment, i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of his age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform his past relevant work. Finally, if the claimant demonstrates that he is unable to perform his past relevant work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform, given his impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform.") (citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983).
As mentioned above, see supra Part II.B.4., the ALJ in the instant case followed this sequential process. He determined that Robbins did not perform substantial gainful activity during her claimed period of disability. Furthermore, although he found that Robbins suffered from a severe impairment, he did not find that the impairment met or equaled one of the presumptively disabling impairments listed in the regulations. The sequential process ended in Robbins' case when the ALJ concluded that she could perform her past relevant work as a nurse's aide.
C. The Polaski Standard and Subjective Pain Credibility Determinations
The Sixth and Seventh Circuits have said, "an ALJ's credibility determinations are, of course, entitled to considerable weight." Young v. Secretary of HHS, 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshier v. Bowen, 831 F.2d 687, 690 (7th Cir. 1987)); see also Gooch v. Secretary of HHS, 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of HHS, 823 F.2d 922, 928 (6th Cir. 1987). Nonetheless, in the Eight Circuit, an ALJ may not discredit pain allegations simply because there is a lack of objective evidence; instead, the ALJ may only discredit subjective pain complaints ("SPC's") if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citing Polaski v. Heckler, 739 F.2d at 1322)). Under Polaski,
[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.
D. Review of the ALJ's Decision
Robbins argues that the decision of the ALJ was not supported by substantial evidence. Specifically, Robbins contends that the ALJ erred in analyzing the evidence and in determining her credibility. She reasons that these errors caused the ALJ to present a faulty hypothetical to the VE, therefore resulting in an improper decision. The court now turns to a discussion of these arguments.
Did the ALJ err in analyzing and determining Robbins' credibility?
Robbins' claim for disability insurance benefits and SSI benefits rises and falls on whether her testimony regarding pain is believed. If during the relevant period Robbins could only stand for fifteen to twenty minutes at a time before back pain forced her to sit or lie down for a half-hour to an hour, as she testified, then she would be entitled to disability insurance benefits and SSI benefits. This is because, according to the VE, such a restriction would have eliminated Robbins from competitive employment. If her testimony regarding pain is not believed, then, according to the VE, Robbins could have returned to her past relevant work and also could have performed several other skilled and non-skilled jobs.
The ALJ chose to disbelieve Robbins' subjective claims of pain, and therefore ruled against her. Thus, a review of the ALJ's decision with an eye toward the Polaski factors is required to determine if the ALJ's credibility determination should be accepted. This is difficult in the present case because, although the ALJ makes reference to the Polaski factors in his opinion (R. at 15.), he fails to set out any analysis of those factors except to make the following conclusory statement:
After considering the medical evidence and testimony in light of factors relevant to "credibility," the administrative Law Judge does not find the record to be supportive of the claimant's allegation that her symptomatology results in a residual functional capacity which would have precluded her from doing any work from April 1993 until April 1996.
(R. at 21.)
An ALJ is not required to explicitly discuss each Polaski factor in a methodical fashion so long as he acknowledges and considers those factors before discounting a claimant's subjective pain complaints. Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996). In the present case, however, the court cannot say with any certainty that the ALJ did, in fact, consider all of the relevant factors. See Delrosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991) (where ALJ rejects claimant's testimony regarding pain, ALJ must make express credibility determination detailing reasons for discrediting testimony); see also Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995) (finding ALJ's decision did not discuss how Polaski factors applied to specific circumstances of case); Erickson v. Sullivan, 930 F.2d 654, 656 (8th Cir. 1991) (same). In fact, after referencing his obligation to undertake a Polaski analysis of Robbins subjective pain complaints, the ALJ cited to Social Security Regulations which provide "that an individual's subjective complaints shall not alone be conclusive evidence of disability." (R. at 15.) While these regulations are not necessarily in conflict with the requirement of Polaski that "[t]he adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them," they are certainly not a substitute for a Polaski analysis.
Nevertheless, the court will attempt to determine how the ALJ's findings fits into the required Polaski analysis.
the claimant's daily activities
The ALJ's decision implied that Robbins' daily activities were inconsistent with her claims of pain. (R. at 21.) He pointed to Robbins' ability to vacuum, cook, wash dishes, and walk the dog during her claimed period of disability.
The court notes that there are conflicting authorities on whether such activities are probative on the question of disability, compare Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (inconsistencies between subjective complaints of pain and daily living patterns may also diminish credibility), with Ricketts v. Secretary of HHS, 902 F.2d 661, 663 (8th Cir. 1990) (finding ability to do light housework does not necessarily indicate ability to perform gainful employment); see also Hight v. Shalala, 986 F.2d 1242, 1244 (8th Cir. 1993) (noting fact that claimant not bedridden does not mean he is not disabled). In the present case, a review of Robbins' testimony suggests that she was only able to perform these duties if she rested frequently and had assistance from friends and family. Under these circumstances, the court finds that this factor weighs in favor of the claimant and not against her.
the duration, frequency, and intensity of pain
The ALJ noted in his decision that Robbins undoubtedly had pain in her back. However, he did not accept her assertion that her pain precluded all types of work. He found that her allegations were not consistent with the evidence as a whole and were not credible.
According to Robbins, during the period of her claimed disability pain limited her ability to stand to fifteen to twenty minutes, and to sit for thirty to sixty minutes. Robbins also stated that two to three times per day she needed to lie down for thirty to sixty minutes to relieve her pain. There is no doubt that pain of such frequency and intensity would support a claim that it precluded all types of work. In choosing to disbelieve that Robbins' pain was as frequent or as intense as she claimed, the ALJ stated, "the record does not contain medical or laboratory tests that could substantiate her level of impairments." This conclusion, unsupported by references to specific items, does little to help the court in deciding if the ALJ's decision was based on substantial evidence. However, the court has a duty to take into account evidence that both supports and opposes the findings of the ALJ. Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994).
An inconsistency exists between Robbins' testimony at the hearing and her answers on a Vocational Report filled out on February 14, 1995. In the report, Robbins stated that she could sit two or three hours before the pain becomes severe, and could stand three to four hours in a day. These statements are significantly different from her testimony regarding the frequency and intensity of her pain during her period of disability. The inconsistency therefore weighs against the credibility of Robbins' subjective pain complaints.
precipitating and aggravating factors
The ALJ's decision made no explicit finding regarding precipitating and aggravating factos. Robbins, on the other hand, provided testimony on these factors and explained that standing for longer than fifteen to twenty minutes, climbing stairs, and generally being on her feet for great lengths of time aggravated her pain. (R. at 53-57.) In fact, Robbins testified that although she could vacuum, do dishes, and walk her dog, she needed to rest during and in between those activities. (R. at 56.) This factor weighs in favor of Robbins' credibility.
dosage, effectiveness, and side effects of medication
The ALJ's decision contained no findings on dosage, effectiveness, and side effects of medicaiton. A look at the record reveals that in the period between April 1993 and January 1996, Robbins' claimed period of disability, Robbins received prescriptions for Relafen in April 1993, Ansaid in January 1995, and Voltaren in May 1995. Each prescription came after Robbins visited a doctor complaining about pain in her back.
The fact that Robbins only occasionally received the prescriptions weighs against crediting her subjective pain complaints. See Cline v. Sullivan, 939 F.2d 560, 568 (8th Cir. 1991) (citing Williams v. Bowen, 790 F.2d 713 (8th Cir. 1986). Minimal medical treatment is also a factor that can weigh against the credibility of a claimant's subjective pain complaints. See id. At the beginning of Robbins' claimed disability period, from April 1993 to February 1994, she saw Dr. Wahby almost monthly, but after February 1994, she saw Dr. Wahby much less frequently, once in January 1995 and once in May 1995. This lapse in seeking medical treatment diminishes her credibility.
functional restrictions
At the hearing, Robbins testified that during her claimed period of disability she could not lift more than ten pounds, nor could she sit or stand for long periods of time. She testified that her pain forced her to lie down for one half of an hour, two to three times per day. She reasoned, therefore, that she lacked the residual functional capacity to perform any of her past work. The ALJ, however, found that Robbins retained the residual functional capacity to lift twenty pounds occasionally and ten pounds frequently, to stand and/or walk two hours and sit for two hours of a normal eight hour workday, and that she was unlimited in her ability to push and pull using hand or foot controls. He also placed exertional limitations on Robbins of occasional kneeling, balancing, stooping, crouching, bending, crawling, or climbing of stairs, ropes, scaffolds, and ladders.
The ALJ's findings on residual functional capacity mirror the Residual Functional Capacity Assessments of Robbins submitted by James W. Hepplewhite, M.D. and reviewed by H. Richard Hornberger, M.D. Although these opinions may not constitute substantial evidence by themselves, see Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998); but see Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995) (noting residual functional capacity assessments by non-treating physicians can constitute the requisite substantial evidence) (citing Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995), there is no question that the ALJ is entitled to consider them at the hearing level, see Frankl, 47 F.3d at 938 n. 2 (citing 20 C.F.R. § 1527(f)(2)).
Other Polaski factors
The ALJ supported his decision to discredit Robbins' testimony regarding her functional capacity by noting statements Robbins made to third parties. In February 1994, Robbins, after attempting unsuccessfully to return to work after her second laminectomy, told Dr. Wahby that she "contacted Workmens Comp and she told them that she did not want to go back to work again. . . ." (R. at 250.) In a Work Performance Assessment completed by William Bowman, Robbins' supervisor while employed at Citgo, Bowman stated that the reason Robbins' employment ended at Citgo was because he was "court ordered to deduct child support from [Robbins'] pay check," and Robbins "said she was not going to pay it." (R. at 147.) In a space reserved for "additional comments," Bowman wrote, "we think she quit because she had to pay child support." (R. at 148.) The statements by Dr. Wahby and Bowman are subject to several interpretations, so on this record, they do not diminish Robbins' credibility.
Polaski also instructs the court to look to the claimant's prior work history for help in analyzing the claimant's subjective pain complaints. Neither the ALJ in his decision, nor this court upon review, found Robbins' work history aided the analysis.
Polaski analysis
Upon considering the record as a whole, the court cannot find that the ALJ correctly evaluated Robbins' subjective pain allegations under the Polaski standard. This is because the ALJ did not adequately discuss the reasons supporting his conclusion that Robbins' testimony lacked credibility. The only factors directly discussed by the ALJ were Robbins' daily activities and certain statements made by third parties regarding Robbins' functional restrictions. These findings are not sufficient to support a conclusion that Robbins' subjective pain complaints should be disregarded.
The court is mindful that its task in reviewing the ALJ's decision does not include re-weighing the evidence; nor may it reverse the ALJ "merely because of the existence of substantial evidence supporting a different outcome." Spradling , 126 F.3d at 1074. However, the court cannot support an ALJ's decision to discount a claimant's subjective pain complaints in the absence of findings to support the decision. See Prince v. Bowen , 894 F.2d 283, 286 (8th Cir. 1990) (ALJ must detail reasons for rejecting claimant's subjective pain complaints).
2. Whether the ALJ's hypothetical was inaccurate and incomplete
Robbins also argues that an inaccurate and incomplete hypothetical belies a finding that the ALJ's decision rested on substantial evidence. Specifically, she contends that because the ALJ's hypothetical did not include the condition that her back pain would force her to lie down for up to one hour per day, it therefore did not fully describer her impairments.
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, or is otherwise inadequate, the vocational expert's testimony does not constitute substantial evidence to support the ALJ's finding of no disability. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) (citing Greene v. Sullivan, 923 F.2d 99, 101 (8th Cir. 1991)).
Although the hypothetical that the ALJ posed to the vocational expert is somewhat muddled, it fully described Robbins' impairments as found by the ALJ. However, since the ALJ's hypothetical did not include the restrictions following from Robbins' subjective pain complaints ( see supra Part III.D.1.f.), it was deficient. See Baker, 159 F.3d at 1145 (hypothetical inadequate because did not fairly reflect claimant's impairments and capabilities).
IV. CONCLUSION
The ALJ failed to properly detail his reasons for rejecting Robbins' subjective pain complaints. Consequently, the ALJ's hypothetical was inaccurate and incomplete because it necessarily included his findings regarding Robbins' subjective pain complaints. Thus, the denial of benefits to Robbins was not based on substantial evidence.
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, judgment be entered in favor of the plaintiff and against the defendant, and that the ALJ's decision be reversed and remanded, and that the Commissioner be ordered to compute and award Plaintiff the benefits to which she is entitled. See Lannie v. Shalala, 51 F.3d 160, 164 (8th Cir. 1995) (in cases where the Commissioner's position is not supported by substantial evidence in the record as a whole, the court must reverse).
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.