Opinion
No. C99-3050
September 1, 2000
I. WITHDRAWAL OF REFERRAL
Before considering the claimant's request for judicial review of administrative actions by the Social Security Administration denying his application for benefits, this court must first address its prior referral of this matter to a magistrate judge. By order dated October 4, 1999, the undersigned referred this request for judicial review of administrative actions by the Social Security Administration on claimant's application for benefits to United States Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B). However, the court finds that it is now appropriate to withdraw that referral. Therefore, the October 4, 1999, referral of this matter to the magistrate judge will be withdrawn and the undersigned will rule upon the claimant's request for judicial review.
II. INTRODUCTION
The claimant, Mark A. Young ("Young"), appeals the denial by the administrative law judge ("ALJ") of Title XVI supplemental security income ("SSI") benefits. Young contends that he is entitled to an award of SSI benefits because (1) the ALJ's analysis of Young's subjective complaints of pain using the Polaski factors was insufficient and incomplete, and (2) the ALJ failed to address the credibility of Mrs. Young. Indeed, Young asserts that there is substantial evidence in the record for this court to award him disability benefits. In the alternative, Young argues that this case should be remanded to the ALJ for further development on these issues.
A. Procedural Background
Young filed an application for SSI benefits on February 13, 1995, alleging disability since March 14, 1994. (R. 177-182). The application was denied initially on June 28, 1995 (R. 129), and again upon reconsideration on October 20, 1995. (R. 121). Young then requested a hearing, which was held before ALJ Jean M. Ingrassia on August 19, 1996. (R. 36). The record was reopened on October 24, 1996, in order to enter three additional exhibits into the record. (R. 81). Attorney Blake Parker represented Young at the hearing. Young, his wife Kathy Young, and Vocational Expert ("VE") Susan White testified at the hearing.
On December 20, 1996, ALJ Ingrassia rendered a decision in which she found that claimant Young was not under a "disability" as defined in the Social Security Act, (R. 7-20) and thus, not entitled to SSI benefits. The Appeals Counsel of the Social Security Administration denied Young's request for review on April 15, 1999, (R. 4), making the ALJ's decision the final decision of the Commissioner.
Young filed an Application to Proceed In Forma Pauperis on June 16, 1999, along with his complaint, seeking review of the ALJ's decision. Young's application was not granted until July 14, 1999, at which time his complaint was filed concurrently therewith. Young's complaint, therefore, is deemed to have been timely filed in the United States District Court. On November 22, 1999, Young filed a brief supporting his claim for an award of benefits. On January 18, 2000, defendant Commissioner filed a resistance to Young's brief in support of benefits. Thereafter, on January 31, 2000, Young filed a reply. The court now deems the matter fully submitted, and turns to a review of Young's application for benefits pursuant to 42 U.S.C. § 405(g).
B. Onset Date of Young's Disability
Before turning to the factual background in this case, however, the court must resolve a preliminary matter — the onset date of Young's disability. The court notes that Young filed a prior application for SSI benefits on May 13, 1994. (R. 115). That application was denied initially on July 12, 1994, (R. 99) and again upon reconsideration on September 19, 1994. (R.82). Young did not elect to appeal that denial, and instead filed a new claim for benefits on February 13, 1995, in which he alleges that his onset date of disability is May 14, 1994. Defendant Commissioner asserts that because the ALJ, in the current action, found no evidence that would warrant reopening the prior decision, a finding of disability prior to September 19, 1994, the date upon which Young's first application for benefits was denied on reconsideration, is precluded under the doctrine of res judicata. See Califano v. Sanders, 430 U.S. 99, 107-109 (1977); 20 C.F.R. § 416.1487-89 (1999).
A federal district court's jurisdiction to review the Secretary's decisions regarding disability benefits is governed by 42 U.S.C. § 405 (g), which provides review only of a "final decision of the Secretary made after a hearing." 42 § U.S.C. § 405(g) (1988). In Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court held that absent a colorable constitutional challenge, federal courts generally do not have jurisdiction to review refusals to reopen claims for disability benefits. Califano, 430 U.S. at 107-09. The Califano court explained:
[i]ndeed, the opportunity to reopen final decisions and any hearing convened to determine the propriety of such action are afforded by the [Commissioner]'s regulations and not by the Social Security Act. Moreover, an interpretation that would allow a claimant judicial review simply by filing — and being denied — a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [§ 405(g)], to impose a 60-day limitations upon judicial review of the [Commissioner]'s final decision on the initial claim for benefits. 20 C.F.R. § 404.951 (1976). Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims. Our duty, of course, is to respect that choice.Id. at 108.
The Eighth Circuit Court of Appeals, however, created an exception to this rule barring judicial review of an agency's decision not to reopen a prior determination of disability. In Jelinek v. Heckler, 764 F.2d 507 (8th Cir. 1985), the Eighth Circuit Court of Appeals held that, if the Commissioner reconsiders the merits of an application previously denied, the matter is considered "reopened" and subject to judicial review. Id. at 508; see also Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir. 1986). This is known as a constructive or de facto reopening. King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996). The mere consideration of evidence from earlier applications, without more, however, is not a reopening of the earlier claims. King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996); Burks-Marshall v. Shalala, 7 F.3d 1346, 1348 (8th Cir. 1993); Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989). Additionally, the Commissioner's factual review of a prior administrative decision, which plaintiff did not appeal, is not a consideration of the merits of the prior decision so as to constitute a reopening. Robertson v. Sullivan, 979 F.2d 623, 625 (8th Cir. 1992).
In Jelinek, the claimant filed a first application for disability benefits alleging disability as of May 3, 1977. That application was denied. He then filed a second application alleging disability beginning on May 16, 1977. That application was also denied. Finally, a third application was filed alleging the same disability date as was alleged in the first application — May 3, 1977. The third application was denied and, after a hearing, the ALJ found that there was no error in the denial of the second application and that the claimant had failed to present new and material evidence which would justify reopening his claim. The ALJ then, however, considered the issue of whether the claimant had been disabled since May 3, 1977, which was an implicit reopening of the case since "the ALJ proceeded to reconsider Jelinek's case on the merits immediately after concluding Jelinek's earlier application could not be reopened." Id. at 508.
A claim can also be reopened for any reason within one year of the date of the notice of initial determination, or for good cause within four years in a Title II case and within two years in a Title XVI case. 20 C.F.R. § 404.988, 404.989 and 416.1488 and 416.1489. Whether an ALJ considered an earlier claim or not, reopening the case more than four years after the initial denial of the Title II claim and more than two years after the initial denial of the Title XVI claim would exceed the authority of the ALJ. King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996). The Eighth Circuit Court of Appeals has held that the Secretary's refusal to reopen an administratively final decision under 20 C.F.R. § 404.988 is not a "final decision . . . made after a hearing" subject to judicial review under § 405(g). See Califano, 430 U.S. at 107-08.; Boock v. Shalala, 48 F.3d 348, 350 (8th Cir. 1995); Lewellen v. Sullivan, 949 F.2d 1015, 1016 (8th Cir. 1991). Such reopening is a matter committed to the Secretary's discretion and may be decided without a hearing. Boock, 48 F.3d at 350.
In this case, Young argues that since he filed his current application on February 13, 1995, which is less than four years since the September 19, 1994, denial, the earlier denial of benefits could have been reopened if good cause was found pursuant to 20 C.F.R. § 404.989.
Good cause is defined in 20 C.F.R. § 404.989, which provides:
(a) We will find that there is good cause to reopen a determination of decision if —
(1) New and material evidence is furnished:
(2) A clerical error in the computation or recomputation of benefits was made; or
(3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made
(b) We will not find good cause to reopen your case if the only reasons for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made.
Specifically, Young asserts that the transcript of the hearing demonstrates that the ALJ failed to discuss whether or not any reason exists that would constitute good cause under 20 C.F.R. § 409.989. Young asserts that the ALJ has a duty to fully and fairly develop the record, see Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998), and because ALJ Ingrassia, in this case, failed to develop the record on whether or not good cause existed to warrant the reopening of Young's prior decision, Young argues that his due process rights were violated. Accordingly, Young contends that the appropriate remedy would be a remand so that this issue may be fully and fairly developed at a hearing. The court does not agree.
Initially, the court notes that Young refers to the wrong section in the Code of Federal Regulations. The regulations in section 404 relate to provisions of Title II of the Social Security Act, whereas the regulations contained in section 416 relate to the provisions of Title XVI of the Social Security Act. Here, Young's claims for benefits are under Title XVI and not Title II of the Social Security Act. Thus, the regulations that govern Young's request to reopen his prior decision are outlined in 20 C.F.R. § 416.1488 and § 416.1489, not 20 C.F.R. § 404.988 and § 404.989. The conditions for reopening Title XVI cases are as follows:
A determination, revised determination, decision, or revised decision may be reopened —
(a) Within 12 months of the date of the notice of the initial determination for any reason;
(b) Within two years of the date of the notice of the initial determination if we find good cause, as defined in § 416.1489, to reopen the case; or
(c) At any time if it was obtained by fraud or similar fault. In determining whether a determination or decision was obtained by fraud or similar fault, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have had at the time.Id. Based on the foregoing, therefore, Young's claim may be reopened for any reason for up to one year after a decision, or may be reopened for good cause for up to two years. 20 C.F.R. § 416.1488(a) (b). As indicated previously, Young argues that the ALJ erred in not fully and fairly developing the record on whether or not good cause existed so as to warrant the reopening of his prior application for benefits.
Young filed his first application for SSI benefits on May 13, 1994. That application was denied initially on July 12, 1994, and then again upon reconsideration on September 19, 1994. On February 13, 1995, Young filed his second application for SSI benefits. Therefore, because Young's second application was filed within twelve months of the notice of his initial denial of benefits, whether or not the ALJ may reopen Young's prior decision is not contingent upon whether or not good cause existed; rather, the ALJ is only required to determine whether or not Young has put forth "any reason" sufficient to permit the ALJ to exercise her discretionary power to reopen the prior decision. See 20 C.F.R. § 416.1488(a). This is precisely what the ALJ did in this case, stating:
Preliminarily, the undersigned notes the claimant filed a prior application on May 13, 1994, protectively, alleging the same onset of disability date and impairments. That application was denied at the initial determination level by notice dated July 12, 1994 and ultimately at the reconsidered determination level by notice dated September 19, 1994. Although less than 12 months have elapsed since the date of the initial determination on this prior application and the date the claimant protectively filed his current application and reopening is within the discretion of the undersigned, the undersigned finds no reason to do so as no evidence has been submitted with the current application which shows a change in the prior denial is warranted. Accordingly, the reconsidered determination dated September 19, 1994 on the prior application remains the final and binding determination of the Commissioner through that date. Any discussion of evidence reflecting on the claimant's disability status prior to February 13, 1995, the date the claimant protectively filed his current application and the controlling beginning date in this case, is solely for the purpose of providing background for consideration of the claimant's disability status since February 13, 1995 and is not a reopening of the prior application and determinations thereon.
(R. 11). The ALJ did not refuse to reopen Young's prior application because he failed to show good cause as Young asserts; rather, the ALJ found no reason to reopen the prior application because no evidence was submitted with Young's current application that showed a change in the prior denial was warranted. Accordingly, Young's argument that the ALJ failed to fully and fairly develop the record on whether or not there existed good cause to reopen his prior decision is irrelevant. What is relevant is that the ALJ expressly determined not to re-open Young's prior application because of the foregoing reason, and, therefore, the ALJ's decision is not a "final decision" of the Secretary. Accordingly, this decision is not subject to this court's review.
Young also argues that the failure of the ALJ to develop the record on whether or not good cause existed in deciding not to reopen Young's prior application at the time of the hearing violated his right to due process. Young contends that because there was a colorable constitutional violation in this case, this court can review the ALJ's decision not to reopen his prior application. See Califano, 430 U.S. at 107-09 (explaining that absent a colorable constitutional challenge, federal courts generally do not have jurisdiction to review refusals to reopen claims for disability benefits).
This court has subject matter jurisdiction to consider the "narrow exception for colorable constitutional claims." Boock, 48 F.3d at 351-52 (citing Califano, 430 U.S. at 109). Under these circumstances, however, no due process violation occurred when the ALJ refused to reopen Young's prior application. See, e.g., Boock, 48 F.3d at 352 (where administrative procedures accounted for the possibility that mentally ill claimant would not have understood opportunity to seek review of ALJ's adverse decision, refusal to reopen did not violate due process standards). It must be remembered that "due process does not guarantee a favorable result, only procedures reasonably calculated to afford claimants a meaningful opportunity to be heard." Id. at 353 n. 8. In this case, the ALJ was not required to fully and fairly develop the record as to whether or not good cause existed in deciding not to reopen Young's prior application, accordingly, there can be no colorable constitutional violation based on this claim.
In sum, therefore, this court lacks subject matter jurisdiction under section 405(g) to review whether the ALJ erred in refusing to reopen Young's prior application for disability benefits. While the court has subject matter jurisdiction to consider Young's constitutional claim, this court concludes that the ALJ did not deny Young due process of law when the ALJ did not fully and fairly develop the record on whether or not good cause existed in determining whether or not to reopen Young's prior application for disability benefits.
C. Factual Background 1. Young's medical history
Claimant, Mark Young, was born on October 1, 1956, and is currently forty-three years old. (R. 11). He is married and has two children, Robert and Mike. (R. 40). The highest grade of school he has completed is the eleventh grade. (R. 181).
Beginning on May 13, 1991, up until July 20, 1999, Young saw Dr. Keith Garber a number of times primarily because of pain in both of his shoulders and neck. (R. 196-198). Dr. Garber also treated Young for diabetes. (R. 196). On May 31, 1991, Dr. Garber noted that Young had "quite a bit of tenderness" in the trapezius and supraspinous muscle mass. (R. 197). Dr. Garber injected Young with what he determined to be a trigger-point with 3 cc's of Carbocaine, and gave him some Norflex to take in addition to his anti-inflammatory, Naprosyn. (R. 197). Dr. Garber questioned Young's motivation, and noted that he thought Young was maximizing his symptoms. (R. 197). However, Dr. Garber recommended that Young go to therapy so he would be able to return to work. (R. 197). On June 20, 1991, Young saw Dr. Garber for a follow up on his shoulder. (R. 196). Dr. Garber noted that Young's shoulder was much better since therapy, occasional shooting pain in the shoulder, minimal tenderness, almost full range of motion ("ROM") and recommended that Young could return to work on June 25, 1991. (R. 196). On May 27, 1992, Dr. Garber prescribed Young Darvocet-N 100. (R. 196). On June 17, 1992, Young saw Dr. Garber for pain in both his shoulders. (R. 196). Dr. Garber noted that Young's pain was located in the supraspinatus area bilaterally scapular areas, and that Young had painful nodularities, which Dr. Garber opined as myofascitis and proceeded to inject each with 2 cc's of Carbocaine. (R. 198). On July 20, 1992, Young saw Dr. Garber for pain in both his shoulders. (R. 198). Dr. Garber noted that Young had a trigger-point in the super spinateous area on the left, and injected the area with 2 1/2 cc's of Procaine. (R. 198).
Rotates the shoulder blade to raise shoulder in abduction of arm, draws shoulder blade backward. Dorland's Illustrated Medical Dictionary, 1081 (27th Ed. 1988).
Situated above the spine or a spinous process. Id. at 1615.
A local anesthetic available as sterile isotonic solutions in concentrations of 1%, 1.5% and 2% for injection vial local infiltration, peripheral nerve block, and caudal and lumbar epidural blocks. Physicians Desk Reference ("PDR"), 2303 (50th Ed. 1996).
Norflex tablets provide twelve (12) hours relief from the pain of muscle spasm. Indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with painful musculoskeletal disorders. PDR. at 1496.
A non-steroidal anti-inflammatory drug with analgesic and antipyretic properties. PDR. at 2110.
Indicated for the relief of mild to moderate pain, either when pain is present alone or when it is accompanied by fever. PDR. at 1434.
A muscle that abducts the bone that extends from the shoulder to the elbow. Dorland's. at 1081.
The flat, triangular bone in the back of the shoulder; the shoulder blade. Dorland's. at 1489.
Inflammation of a muscle and its fascia, particularly of the fascial insertion of the muscle bone. Dorland's. at 1090.
Stabilizes the neuronal membrane and prevents the initiation and transmission of nerve impulses, thereby effecting local anesthesia. It is indicated for spinal anesthesia. PDR. at 2326-27.
In July of 1993, while working for Iowa Beef Packing Company, Young was kicked by a bull in the lower back and was thrown in the air and landed on his back. (R. 55-56; 200; 204; 239). On July 16, 1993, an X-Ray was taken of Young's back, indicating that Young suffered no fractures, his vertebral alignment was normal, and no destructive body lesions were apparent. (R. 214). Medical reports indicate that due to the pain that Young experienced from this incident, he was off work for approximately two weeks. (R. 239). Moreover, the same medical report indicates that when Young returned to work, he was kicked once again by a bull. (R. 239). On May 20, 1994, Young saw Dr. Raval with complaints of back and neck pain that traveled to his arm and forearm, shoulder pain, stiffness and muscle weakness, as well as numbness, tingling and shakiness in his lower extremities. (R. 204). Dr. Raval noted that Young was taking Ibuprofen and Flexeril for his pain. ( Id). Dr. Raval obtained an X-Ray of Young's left shoulder and prescribed Tylenol #3. (R. 205). Thereafter, Young returned to see Dr. Raval for a follow-up visit on May 23, 1994, during which he complained of additional pain in his right shoulder. (R. 206). Dr. Raval noted that the Motrin and muscle relaxant that Young had been on did not seem to help. (R. 206). Dr. Raval also noted that Young's "cranial nerves II-XII are intact," "motor strength shows a decreased grip on the right." (R. 206). Dr. Raval ordered a chest X-ray, scheduled an MRI of the cervical spine and prescribed Codine #3. (R. 206). On May 25, 1994, a radiology report indicated that degenerative changes were apparent in Young's cervical spine from C2-3 to C4-5. (R. 225). The report indicated that "C4-5 was the worst level where there is mild spinal stenosis due to posterior disc bulging and discogenic osteophytes, and that there appears to be normal foraminal narrowing at the C4-5 on the left." (R. 225).
Indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions. PDR. at 1661.
Narrowing or stricture of a duct or canal. Dorland's. at 1579.
A bony excrescence or osseous outgrowth. Dorland's. at 1200.
On July 20, 1994, Dr. Raval referred Young to Dr. Hayne for an examination. (226). Dr. Hayne conducted an examination of Young, noting that the MRI, in May of 1994, showed a severe stenosis in the foramen between the fourth and fifth cervical segments of the left side, which he diagnosed as a herniated disc. (R. 230). Dr. Hayne opined that Young was a candidate for diskectomy and interbody fusion at the C4-5 interspace for treatment of the herniated disc and tentatively scheduled surgery for August 9, 1994. (R. 130). On August 16, 1994, Dr. Hayne performed surgery on Young, which consisted of a diskectomy and interbody fusion at the fourth cervical interspace. Upon being discharged from the hospital on August 17, 1994, Dr. Hayne noted that the surgery went well and that Young was free of significant pain at the time of release. (R. 238-40).
Excision of an intervertebral disk. Dorland's. at 495.
On September 7, 1994, Young saw Dr. Hayne for a post-operative visit. Young reported that his pain was much less severe and that he was able to hold his head straight now. Examination was unremarkable. Dr. Hayne recommended that Young seek vocational rehabilitation services regarding employment, and participate in physical therapy. (R. 230).
Young began physical therapy on October 6, 1994, stating that the pain in the cervical area and shoulder had been at a constant level for the past few months. (R. 245). Young also described this pain to Beth Hill, the physical therapist, as being sharp, nagging and sore and that it was present 75% of the time. (R 251). Moreover, Young indicated that the pain caused him to be tired and annoyed. (R. 251). Hill treated Young with ultrasound and moist heat and, he also received exercise and message techniques in an effort to increase his flexibility as well as decrease the pain. (R. 245). The physical Therapy Progress Notes, between October 6, 1994 through November 7, 1994, show that Young still had complaints of pain, however, they also show that Young felt "less pain;" that he was making "good progress;" that he had"no cervical pain or radiating symptoms;" and "no complaints overall". (R. 254-257).
On November 7, 1994, Dr. Hayne noted that Young's wife called to report that Young finished physical therapy, and that he was doing "ok." (R. 231). Mrs. Young also requested that Young be released from Dr. Hayne's care due to convenience and that Young be allowed to follow up with Dr. Raval. (R. 231). Dr. Hayne acquiesced to Mrs. Young's request, and released Young from his care with the understanding that Young would follow up with Dr. Raval. (R. 231).
On February 13, 1995, Young was seen by Dr. Raval with complaints of constant numbness in his left hand and arm. He reported pain in his left arm which was dull and constant, with an occasional shooting pain to the elbow. Young complained of muscle weakness and numbness in the right shoulder and of pain in his lower back. He stated that he had difficulty getting out of a chair and walked with a limp due to back pain. He had intermittent numbness and tingling in his legs, primarily in his left leg, and some muscle weakness in his legs. Mrs. Young stated that when Young flexes his neck he gets "as white as my lab coat." Young also complained of muscle weakness in his legs, and indicated that it hurt when he stood too long. Young described his back pain as if a knife were twisting in his back. He stated that Tylenol deadened the back pain a little bit. Mrs. Young wondered if perhaps Young reinjured himself while he was working on a car. (R. 211). Dr. Raval examined Young and noted a decreased grip, and decreased muscle mass on the left forearm. Young's reflexes were symmetrical. There was decreased sensation to soft touch and pin prick over the left upper extremity, and decreased sensation to soft touch over the left foot. Dr. Raval also noted Young's leg was intact to soft touch and pin prick. (R. 212).
Thereafter, on February 16, 1995, Dr. Raval performed an electromyography ("EMG") and nerve conduction study on Young. (R. 212). Dr. Raval noted that Young had an abnormal EMG, however, there was no evidence of carpal tunnel syndrome or mononeuropathy. (R. 259). This examination showed 1+ denervation in the left tricep muscle which was suggestive of C-7 radiculopathy. (R. 259). Dr. Raval advised Young not to do any heavy lifting pending a magnetic resonance imaging ("MRI") scan. (R. 212). On February 20, 1995, impressions from Young's MRI indicated some posterior encroachment on the right lateral supine at the level of the previous C4-5 disc, which signified either post-surgical granulation tissue or osteophyte formation rather than protruding disc. (R. 269). The left spinous recess at C4-5 was clear and the cord was not compressed or impinged upon. (R. 269). The MRI also indicated that Young's remaining cervical levels were negative for any bony soft tissue encroachments and negative for any disc herniations or protrusions. (R. 269).
The recording and study of the intrinsic electrical properties of skeletal muscle. Dorland's. at 537.
Disease affecting a single nerve. Dorland's. at 1051.
Disease of the nerve roots. Dorland's. at 1405.
A bony outgrowth or protuberance. Stedman's Medical Dictionary, 1110 (25th Ed. 1990).
On March 1, 1995, Dr. Raval noted that Young's MRI of the cervical spine showed some abnormality. During this visit, Young complained of a dull pain that shot down his left leg, tingling in his left leg, and pain in his lower back. A neurological examination revealed decreased grip on the left and decreased strength of the left knee extensor. Sensation was decreased to soft touch and pin prick in the left upper extremity. There was decreased sensation prick over the left lower extremity. Dr. Raval noted that Young's coordination was normal, however, his gait was slow. Dr. Raval referred Young back to Dr. Hayne for a follow-up appointment. (R. 213).
Dr. Hayne examined Young on May 10, 1995. Young's chief complaint was lower back and left lower extremity pain. (R. 233, 316). Dr. Hayne's examination was essentially negative except for some restriction of forward motion of the lumbar spine. (R. 316). Due to the persistence of Young's pain in the lower back and lower left extremity, however, Dr. Hayne opined that an MRI was warranted. (R. 316). On May 23, 1995, an MRI was performed on Young's lumbar spine that revealed slight bulging at the L5-S1 level, some intervertebral disc desiccation at the L5-S1 level, mild facet apophyseal degenerative changes at the L4-5 and L5-S1 levels, and slight encroachment upon the neural foramina structures at the L5-S1 level. (R. 270). No disc herniation was identified. (R. 270).
On June 14, 1995, Young saw Dr. Hayne for complaints of numbness in his hands, numbness in his left lower extremity, mainly in the front of the left thigh and leg, problems with the top of his left foot, and pain in his lower back region. Dr. Hayne's examination was essentially negative except for a very mild limitation of forward motion of the lumbar spine. (R. 304).
On July 13, 1995, a lumbar myelogram revealed a well-demonstrated lumbar subarachnoid space with no evidence of disc protrusion, nerve root compression, or entrapment. The theca sac appeared normal, and there was no evidence of significant abnormality or disc herniation. (R. 271). A computer tomography ("CT") scan of the lumbar spine revealed a slight posterior bulging of the L5-S1 intervertebral disc, but no evidence of compression or entrapment of the neural elements at this level. Mild degenerative arthritic changes were noted about the articular facets at the L5-S1 level. There was some hypertrophy of the ligamentum flavum at L4-5 level with slight associated degenerative arthritic changes about the articular facets. Slight degenerative arthritic changes were noted about the articular facets at the L3-4 level. There was no definite evidence of disc protrusion or other significant abnormality. (R. 272).
A specially sensitized film of the spinal cord. Dorland's. at 1087.
A general increase in bulk of a part or organ. Steadman's. at 746.
On August 2, 1995, Young saw Dr.Hayne with complaints of lower back pain, which caused difficulty in sleeping and pain in the front of the left thigh. Examination revealed normal strength of the lower extremities. (R. 305).
On August 24, 1995, Young saw Dr. Marlon K. Weiss, a consulting physician, for a disability physical. (R. 274-75). Young reported that his arm "tingles and goes numb." His knees and ankles hurt. He complained of a rare headache or migraine. He denied neck pain, and stated that his legs were cold. Young stated that he had left leg weakness, and that he used a cane. He had not driven in a month because of the clutch in his car. He stated that he had difficulty sleeping. Examination revealed normal or near normal range of motion. Dr. Weiss noted that shoulder range of motion was checked passively with screening test and was normal. Strength in the upper extremities was 5+/5+ on the right, and 4+/4+ on the left. Right lower extremity strength was 5-/5+. Left lower extremity strength was 4+/5+. Dr. Weiss noted that Young "does exhibit foot drop blat and has flat feet with appearance of almost a degenerative charcoal foot." (R. 274). Dr. Weiss's analysis included diabetes mellitus; tobacco abuse; status post C4-5 fusion; left weakness of unknown etiology, rule out cerebrovascular accident; possible diabetic neuropathy; and arthralgia of unknown etiology. Dr. Weiss determined that Young could lift and carry 10 to 20 pounds, but not for a great distance; it was reasonable that Young could walk one-half a block at a time, and sit for one-half hour a time without having to move around. He noted that Young had difficulty stooping and kneeling, and a little bit less difficulty crawling, but noted that Young could not do these on a regular basis. Dr. Weiss opined that Young should not climb, however, he noted that Young had no problems handling objects, hearing, or speaking. Vision would be restricted to Young's glasses. He could not drive a vehicle with a clutch. Dr. Weiss opined that Young's work environment should minimize saw dust, however, temperature extremes and other hazards would not present a problem. (R. 275).
On September 1, 1995, Young visited Dr. Raval for a follow-up on neck pain. He reported difficulty walking, weakness in his left leg, pain over his left knee, and pain in his left hip area. He had also experienced some involuntary blinking of his left eye. Dr. Raval explained that the involuntary blinking could be caused by stress, as a brain scan revealed no evidence of lesions. Young's CT scan of the brain looked fine. Dr. Raval further opined that Young's lower extremity weakness could be due to poor effort on his part, and doubted whether or not Young really had weakness. (R. 318, 337). He recommended physical therapy, a TENS unit, and prescribed an analgesic, Ultram. (R. 321).
On September 7, 1995, Young participated in a physical therapy evaluation. The evaluating therapist noted that Young was able to complete five minutes on the treadmill. The therapist noted that Young appeared to be reconditioned and tired, and was suspicious of his complaints as it was difficult to pin him down to specific symptoms. (R. 319-20).
Young saw Dr. Raval on December 18, 1995, for a follow-up. Dr. Raval noted that physical therapy helped Young's left leg "quite a bit" at first, but that his leg had recently worsened. Young had been attending therapy twice a week, however, due to the cold weather he decreased it to once a week. He complained of constant pain in his left hip that traveled down his leg, and complained that it hurt to walk. Young also reported numbness in his left hand. Dr. Raval noted that Young was taking insulin, over-the-counter aspirin, Ibuprofen and Tylenol. Examination revealed the cranial nerves to be intact except for decreased sensation to soft touch over the right cheek. (R. 321). There was weakness on the left side, but no atrophy was noted. Reflexes were symmetrical. Dr. Raval also noted "decreased sensation to soft touch over the lateral aspect of the left upper extremity, and decreased sensation to pin-prick over the entire left upper extremity and left lower extremity." Coordination was normal, however, Young walked with a limp. Dr. Raval diagnosed Young with left hip pain. He ordered an X-ray of Young's hip and Young was given samples of Daypro. (R. 326). The X-ray revealed no evidence of a fracture and no destructive bony lesions were apparent. (R. 338).
A nonsteroidal anti-inflammatory drug. PDR. at 2426.
On December 31, 1995, Young visited the emergency room for a twisted left ankle. (R. 323). Dr. Paul H. Novak obtained an X-ray of Young's ankle, which came back negative, and diagnosed Young as having a sprained ankle. ( Id.). Dr. Novak provided Young with an air splint. ( Id.). On February 9, 1995, Young saw Dr. Raval for left ankle pain. (R. 327). After taking an X-ray, Dr. Raval opined that Young had a chronic deltoid ligament injury as well as degenerative changes in the joint. ( Id.). He recommended that Young take Advil, and injected his ankle with cortisone. ( Id).
On August 1, 1996, Young saw Dr. Raval for re-evaluation of his leg pain. Young reported that his left leg felt weak, and he had swelling and intermittent pain in his left knee. He stated that while walking his entire left leg hurt him and also went out on him. Young reported some back pain, but indicated that it was not that bad. He indicated that he also had pain in his right leg. Examination revealed that Young's reflexes were symmetrical. No muscle weakness was noted, but Dr. Raval did note poor effort on Young's part regarding his left leg complaints of pain. Dr. Raval prescribed Daypro and also recommended that Young have an MRI scan of the LS spine. (R. 335). An MRI of the LS spine, performed on August 7, 1996, indicated a L4-5 mild broad-based disc bulge and facet hypertrophy contributing to create canal stenosis. At L5-S1, there was a moderate circumferential disc bulge coupled with prominent facet hypertrophy resulting in mild to moderate left neural foramina stenosis. (R. 342). X-rays of the lumbar spine revealed moderate degenerative changes at L4-5 and L5-S1. (R. 343).
Young saw Dr. Hayne on September 5, 1996, complaining of lower back pain and indicated that the severity had increased gradually during the past six months. At times, Young stated that the pain extended into the front of the left thigh, and that he had some pain and numbness in the forearms. Young also stated that he had some weakness in the left lower extremity. Examination revealed limited range of motion of the low back. Dr. Hayne questioned Young's efforts in carrying out the motion. Strength of the lower extremities appeared to be within normal limits. Dr. Hayne's impression was lower back pain of questionable etiology. He noted that a recent MRI of the lumbar spine appeared to be close to normal with only a slight bulge at the fourth and fifth lumbar discs with no specific root compression. A treatment note by Dr. Hayne dated September 12, 1996, indicated that a lumbar myelographic study and CT scan were normal, and that there was no apparent reason why Young should not be able to return to work. (R.344).
2. Young's testimony
Young testified that he became disabled when he was kicked by a cow at work, which caused him to undergo bone fusion surgery in the back of his neck. (R. 41). Young testified that he had pain located in the lower part of his back between the fourth and fifth vertebrae. ( Id.). He testified that Dr. Raval told him that he had two discs bulging and that one of the discs was real bad. ( Id.). Young also stated that Dr. Raval told him that he had some kind of a disc disease. ( Id.). He testified that an MRI and myelogram performed in 1995 showed no disc herniation, but that it showed some bulging. (R. 57). Young alleged that a more recent MRI had been taken, and that in light of this MRI, Dr. Raval told him that he had one disc "that's really bulged out and one halfway into the cord in the fifth verterbrae" of his lower back. (R. 58). Young's attorney asked him to rate the pain he experienced on his left side given a scale of 1 to 10 with 10 being extreme pain and 1 being very little pain. (R. 54). Young testified that when he stretched or when he was hot that his pain level would be at 8, and that medication did not completely take away the pain, but did dull it. (R. 54-55). With respect to his lower back and legs, Young testified that when he walks a half block his pain level is at a 10, and that when he rests the pain decreases to a 7. (R. 55).
Young testified that he had pain in his left side, and that when he went to bed he experienced shooting pains down into his fingers, and numbing and tingling in his fingers and legs. (R. 47). He stated that the he was restricted, per doctor's orders, from lifting too much. ( Id). Young testified that he was having extreme difficulties with his legs, describing them as feeling "numb," "tingly," and "prickly." (R. 48). He testified that walking exacerbated the problem, and that he could not sleep comfortably at night, approximating that he received four hours per night, due to his back pain, leg numbness and tingling. (R. 48-49). Young stated that he takes Tylenol #3, as prescribed by Dr. Raval, which cured some of the pain. (R. 49).
Young testified that he was a diabetic, but that he didn't seem to think that his diabetes complicated the matter. (R. 49). He stated that he took insulin once every morning. (R. 50). Young stated that his diabetes did not factor into his ability to do work. (R. 50).
Young testified that since his neck surgery, he cannot do the things that he used to do. (R. 42). Young stated that he "can't walk very good, not very far, can't hardly bend over, can't stand on my legs for very long." (R. 43). Specifically, Young testified that after walking a half a block he had to pull up his leg and move it because it became numb and tingly, stating that he felt like he was lifting a heavy weight. (R. 43). He testified that once or twice, the leg on his left side gave out. (R. 43). He stated that he could stand for maybe fifteen to twenty minutes. (R. 44). He stated that he cared for his three-year old daughter while his wife worked, but that he could not pick up his daughter very much. (R. 46). Young stated that he could not mow his yard. (R. 46). Young testified that he could lift approximately twenty pounds with his left side. (R. 47). He further testified that on a typical day, he gets the mail, makes coffee, dresses his daughter, sometimes cleans the floor when his pain was not too bad. (R. 50). He could run the vacuum sweeper for fifteen minutes in one stretch. (R. 51). He stated that he walks with his daughter, cooks sometimes, and does the dishes if there are not many, otherwise he is unable because of his inability to stand for too long. (R. 52-53).
Young's wife, Kathy Young, also testified at the hearing. Mrs. Young testified that Young had seen Dr. Raval ever since he was kicked by the bull, and had seen him probably five or six different times and that he has had some physical therapy. (R. 61). She stated that Young recently had seen Dr. Raval because of the pain and numbness throughout his back and legs, and because his leg malfunctioned half the time. (R. 61). She stated an MRI that was taken at that time indicated that there were two bulging discs in Young's back, one was between the fourth and fifth vertebrae and that the other one was located a little lower than that. (R. 61-62). She further stated that Dr. Raval scheduled an appointment for Young to see Dr. Hayne on September 5. (R. 62).
She stated that Young can walk "maybe" a half a block without having walking problems. (R. 62). She indicated that Young's leg "goes like it is kind of bent," and that he literally has to pick the leg up to make it move. (R. 62). She testified that he loses the grip in his shoulder and his hands, and that getting in and out of the bathtub is not easy for him. ( Id.). As a result, Mrs. Young stated that sometimes she helps him getting in and out of the bathtub, and sometimes she has to help him with his pants. (R. 63). She testified that he has a hard time going up and down stairs. ( Id.). She testified that he vacuums for approximately ten minutes at a time, and he lightly dusts. ( Id.). She stated that Young tries to change some diapers and do a little bit of laundry. ( Id.).
Mrs. Young testified that their daughter, for whom Young cared while she was at work, weighed approximately 40 pounds, and that Young sometimes lifted her onto his lap. (R. 65, 73). She stated that the bedrooms in their house were located upstairs, and that Young slept upstairs. (R. 66). She did, however, state that sometimes Young slept on the couch because he could not get up the stairs. ( Id.). She testified that Young was not able to sit through a television show, explaining that he is usually up and down and walking around. (R. 67). Mrs. Young also testified that Young fished sitting down. (R. 74).
3. Vocational expert's testimony
VE Susan Fletcher-White testified at the August 19, 1996, hearing. (R. 76-81). The ALJ posed the following hypothetical to the VE:
40 year old with an 11th grade education, work activity as set out in Exhibit 41, excluding the janitor and including the cattle bleeder which we don't seem to have notes and description at the present time. Claimant's problems are diabetes mellitus which as he testified to is basically under control with, or at least it's not causing any problems that he's aware of. Insulin dependent, seems to be controlled with that. He is also status post fusion at the C-4, C-5 level and residual functional capacities as have been formed by Dr. Weiss who is an orthopedist limited him to lifting and carrying between 10 and 20 lbs. But not at a great distance. Dr. Weiss indicated he should be able to walk a half a block at a time and sit a half an hour at a time without having to move about. He had difficulty stooping and kneeling and less difficulty crawling, but the doctor felt he wouldn't be able to do any of these activities on a sustained or regular basis. Based in the examination, he also was restricted as to climbing and those are the limitations we have based on the record at Exhibit 27, page 3. They seem to correlate with the claimant's testimony. Would he be able to perform any work activity he has performed in the past?
(R. 77). The VE testified that the hypothetical claimant would be precluded from the past relevant work activity based on the information contained in that hypothetical. ( Id.). The ALJ asked whether or not there would be other work. (R. 78). The VE responded that looking at lifting occasional to 20 pounds, the first position in the unskilled light work jobs would be a marker position, or a stamper marker. ( Id.). The VE testified that the DOT for this position is 920.687-126, 1, and that there are 500 jobs in Iowa and 100,00 at the national level. ( Id). The VE further stated that a second position would be a bench assembly. ( Id.) The DOT is 706.687-010. At the light capacity, the VE testified that there are 2,000 jobs in Iowa and 65,000 jobs on the national level. A third position noted by the VE was a laundry sorter. The DOT is 361.687-014, and at the light capacity, the VE testified that there are 400 jobs in Iowa and 32,000 jobs nationally. ( Id.) In response to the ALJ's question about whether or not these jobs would allow one to alternate between sitting and standing in order to achieve some measure of comfort, the VE stated that all of these jobs would enable one to be able to change positions. The ALJ then asked whether or not there were some sedentary jobs that would allow the hypothetical claimant to change positions that would be unskilled. (R. 78). The VE stated:
Yes, there would be. The first one I would cite is a surveillance monitor, DOT 379.367-010. At the sedentary level, there is 500 jobs in Iowa and 62,000 on the national level. Secondly is a storage facility rental clerk and DOT on that is 295.367-026. At the sedentary level, there is 300 jobs in Iowa and 21,000 on the national.
(R. 79).
On examination by Young's attorney, the VE testified that if the hypothetical claimant was also unable to use his left hand that the VE would exclude laundry work and bench assembly from the list of jobs that she stated such a hypothetical claimant would be able to perform. (R. 79). The VE did, however, testify that he could do the stamper position with one hand, and that the following sedentary jobs would be available to a person with such limitations: surveillance monitor and storage facility rental clerk. ( Id.). The VE later added another sedentary job that would be available to such a person, namely, a microfilm preparer, DOT 249.587-018, for which there is 500 jobs in Iowa and 14,000 at the national level. (R. 80).
4. The ALJ's conclusion
The ALJ concluded that Young has a combination of impairments which are severe, however, neither the subjective nor objective evidence in the record establishes that Young's impairments, considered alone or in combination, meet or equal the level of severity of any impairment found in the "Listing of Impairments" at 20 C.F.R. Part 404, Appendix 1, Subpart P, Regulations No. 4. (R. 11). The ALJ concluded that Young's subjective complaints of disabling neck pain, arm pain and weakness, lower back pain, and left leg pain and weakness were not credible. (R. 16). The ALJ found that Young has not engaged in substantial gainful activity since at least February 13, 1995. (R. 11). Additionally, the ALJ found that Young;
has the residual functional capacity to perform the physical exertional and nonextertional requirements of work except for lifting and carrying more than 10 to 20 pounds. Furthermore, the claimant can walk one-half block at a time and sit one-half hour at a time without moving about. The claimant has difficulties stooping, kneeling, and crawling and should not do these on a regular basis. The claimant is restricted as to climbing. ( 20 C.F.R. § 416.945).
(R. 19). The ALJ concluded that Young would be unable to perform his past relevant work and that his residual functional capacity for the full range of light and sedentary work was reduced by the limitations listed above. (R. 19). However, the ALJ concluded that considering Young's age, education, previous work experience, and residual functional capacity that jobs still existed in significant numbers in the national economy that Young could perform. ( Id.) Consequently, the ALJ found that Young was not under a disability as defined in the Social Security Act. ( Id.)
III. STANDARD OF REVIEW A. The Substantial Evidence Standard
The Eighth Circuit Court of Appeals recently explained the standard for judicial review of an ALJ's denial of Social Security benefits as follows:
We must uphold the ALJ's decision if it is supported by substantial evidence. See Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Our task is not to reweigh the evidence, and we may not reverse the Commissioner's decision merely because substantial evidence would have supported an opposite conclusion or merely because we would have decided the case differently. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). In determining whether substantial evidence supports the ALJ's decision, we must consider evidence in the record that supports the ALJ's decision as well as evidence that detracts from it. See Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993).Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999); Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) ("We cannot reverse the ALJ's decision merely because the record contains substantial evidence supporting a contrary outcome."). "`Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion.'" Wieler, 179 F.3d at 1109 (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)). However, the reviewing court "must determine whether the ALJ's findings are supported by substantial evidence on the record as a whole." Id. (again citing Pierce, 173 F.3d at 706); accord Jenikins v. Apfel, 196 F.3d 922, 924 (8th Cir. 1999) ("We review the decision of the ALJ to determine whether his findings are supported by substantial evidence on the record as a whole."); Rankin v. Apfel, 195 F.3d 427, 428 (8th Cir. 1999) (same).
The Eighth Circuit Court of Appeals has also explained how a court is to determine whether the ALJ's findings "are supported by substantial evidence on the record as a whole":
In Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987), the Court discussed the difference between "substantial evidence" and "substantial evidence on the record as a whole." "Substantial evidence on the record as a whole" wrote then Chief Judge Lay, "requires a more scrutinizing analysis" than the "substantial evidence" test. The Court went on to say:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.Gavin v. Heckler, 811 F.2d at 1199. In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).
Willcuts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir. 1998); accord Rankin, 195 F.3d at 428 ("We also evaluate whatever evidence contradicts the Commissioner's decision, rather than simply searching the record for supporting evidence."); Harwood, 186 F.3d at 1042 ("In determining whether substantial evidence supports the ALJ's decision, we must consider evidence in the record that supports the ALJ's decision as well as evidence that detracts from it."). Thus, this court must undertake a "scrutinizing analysis" of the evidence in the record as a whole.
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 the claimant 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 v. Callahan, 133 F.3d 583, 587-88 (8th Cir. 1998) (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). The Eighth Circuit Court of Appeals has repeatedly summarized the five-step disability evaluation process as follows:
[The Commissioner] determines: (1) whether the claimant is presently engaged in a "substantial gainful activity"; (2) whether the claimant has a severe impairment — one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Kelley, 133 F.3d at 587-88 (8th Cir. 1998).Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); accord Bladow v. Apfel, 205 F.3d 356, 358, n. 5 (8th Cir. 2000) (similar summary); Kerns v. Apfel, 160 F.3d 464, 466 n. 6 (8th Cir. 1998) (same summary, citing Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998), and 20 C.F.R. § 404.1520); Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998) (same summary, citing Kelley); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998); Kelley v. Callahan, 133 F.3d 583, 587-88 (8th Cir. 1998); see also Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (referring to the five-step process established by 20 C.F.R. § 1404.1520(a)-(f), but not identifying specifically the steps in the process); and compare Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998) (stating the burden-shifting process in two succinct steps: "To establish a disability claim, the claimant bears the initial burden to show that she is unable to perform her past relevant work. . . . If met, the burden of proof then shifts to the Commissioner to demonstrate that the claimant retains the physical residual functional capacity to perform a significant number of jobs in the national economy that are consistent with the claimant's impairments and with vocational factors such as age, education, and work experience.") (citations omitted).
At step five, the Eighth Circuit Court of Appeals, in Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), explained that the Commissioner bears the burden on two particular matters:
In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc); OLeary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).
Nevland, 204 F.3d at 857; accord Cunningham v. Apfel, ___ F.3d ___, 2000 WL 1072298, *3 (8th Cir. Aug. 4, 2000) (citing Nevland) ("If the claimant is unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and, second, that other such work exists in substantial numbers in the national economy."); Weiler, 179 F.3d at 1110 (analyzing the fifth-step determination in terms of (1) whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination and (2) whether there was sufficient evidence to support the ALJ's conclusion that there were a significant number of jobs in the economy that the claimant could perform with that residual functional capacity); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (describing "the Secretary's two-fold burden" at step five to be, first, to prove the claimant has the residual functional capacity to do other kinds of work, and second, to demonstrate that jobs are available in the national economy that are realistically suited to the claimant's qualifications and capabilities). Furthermore, a number of decisions handed down since Nevland was decided confirm Nevland's statement of the Commissioner's burden at step five of the sequential disability analysis. In Singh v. Apfel, ___ F.3d ___, ___, 2000 WL 1191031 (8th Cir. Aug. 21, 2000), the Eighth Circuit Court of Appeals specifically relied on Nevland for the statement of the Commissioner's burden:
If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and, second, that other such work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). A claimant's residual functional capacity is a medical question. See id. at 858. Singh, ___ F.3d at ___, 2000 WL 1191031 at *3. Moreover, the court in Singh concluded that, "[h]aving found that the Commissioner has not met his burden of proving that Singh can perform other jobs in the national economy, we reverse the judgment of the district court affirming the Commissioner's decision." Id. at ___, 2000 WL 1191031 at *5. Finding further that the evidence supported a finding of disability, the court remanded to the district court to remand to the Commissioner for an award of benefits. Id.; see also Cunningham v. Apfel, ___ F.3d ___, ___, 2000 WL 1072298, *3 (8th Cir. Aug. 4, 2000) (also stating the Commissioner's burden with citation to Nevland); Shaw v. Apfel, ___ F.3d ___, ___, 2000 WL 987706, *1 (8th Cir. July 19, 2000) (finding that the ALJ had properly recognized the Commissioner's burden, as stated in Nevland, but citing McCoy v. Schweiker, 683 F.2d 1138 (8th Cir. 1982) ( en banc), one of the decisions on which Nevland relied).
IV. LEGAL ANALYSIS
As stated previously, Young asserts two arguments challenging the Commissioner's decision. First, Young argues that the ALJ's analysis of his subjective pain complaints under Polaski was insufficient and incomplete. Second, Young argues that the ALJ failed to address the credibility of Mrs. Young. The court will address each of Young's arguments in turn.
A. The Polaski Standard: Subjective Pain Complaints and Credibility Determination
In Robbins v. Apfel, 69 F. Supp.2d 1151, 1156 (N.D.Iowa 1999), this court reiterated the repeated warnings of the Eighth Circuit Court of Appeals that, in rejecting a claimant's subjective complaints of pain, an ALJ must make express credibility determinations, must detail the reasons for discrediting the testimony, must set forth the inconsistencies upon which he or she relies, and must discuss the Polaski factors. See, e.g., Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) ("When rejecting a claimant's complaints of pain, the ALJ must make an express credibility determination, must detail reasons for discrediting the testimony, must set forth the inconsistencies, and must discuss the Polaski factors."); Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir. 1998) (reiterating these requirements and finding that, in the case before the court, "the inconsistencies that the ALJ relied on to disbelieve Beckley's testimony are not supported by sufficient evidence"); Burress v. Apfel, 141 F.3d 875, 880-81 (8th Cir. 1998) ("Although an ALJ may reject a claimant's subjective allegations of pain and limitation, in doing so the ALJ `must make an express credibility determination detailing the reasons for discrediting the testimony, must set forth the inconsistencies, and must discuss the Polaski factors.'") (quoting Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998)); Kelley, 133 F.3d at 588 (reciting the same requirements and concluding that "the ALJ did not adequately detail the inconsistencies that she relied upon to disbelieve Kelley's testimony"); Jones v. Callahan, 122 F.3d 1148, 1151 (8th Cir. 1997) (reiterating these requirements); Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996) (same). More specifically, "[w]hen an ALJ fails to believe lay testimony about a claimant's allegations of pain, he should discuss the testimony specifically and make explicit credibility determinations." Ricketts v. Secretary of Health and Human Servs., 902 F.2d 661, 664 (8th Cir. 1990). Only where an ALJ adequately explains his or her findings on the Polaski factors or the reasons for discrediting testimony in light of these factors, are the ALJ's conclusions regarding the credibility of the claimant's subjective pain complaints entitled to any deference. See Jones, 122 F.3d at 1151 ("`We will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a claimant's testimony of disabling pain.'") (quoting Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992)); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990) ("If an ALJ explicitly discredits a claimant's testimony and gives a good reason for doing so, we will normally defer to that judgment.").
Under Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984):
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.
1. Was the ALJ's analysis of Young's subjective complaints of pain using the Polaski factors sufficient and complete?
Young argues that the ALJ did not demonstrate that she evaluated all of the evidence. Specifically, Young asserts that although the ALJ identified Young's daily activities, the ALJ never explained why the daily activities were inconsistent with the objective medical evidence. Thus, with respect to the first Polaski factor, Young argues that the ALJ failed to explain why vacuuming, taking care of a three-year old, and having a bedroom upstairs are inconsistent with Young's subjective complaints of pain. With respect to the second Polaski factor, Young argues that the ALJ ignored Young's testimony and the medical records on the issue of duration, frequency and intensity of pain. With respect to the third Polaski factor, Young argues that the ALJ never explained any inconsistency between his testimony that if he walked a half-block he would experience intense pain with the objective medical evidence in the record. Lastly, with respect to the fourth Polaski factor, Young argues that the ALJ failed to fully and fairly develop the record regarding the dosage, effectiveness and side effects of the medication, Tylenol #3, that he was taking. Therefore, Young contends that because the ALJ failed to develop the Polaski factors, this case should be remanded for further development of these factors. This court disagrees.
Initially, it must be remembered that the issue is not whether Young experiences pain, but whether his subjective complaints are credible to the extent that they are disabling. Pickner v. Sullivan, 985 F.2d 401, 404 (8th Cir. 1993). In determining that Young's subjective complaints were not credible, the ALJ properly considered Young's subjective complaints of a disabling impairment pursuant to the guidelines set forth in Polaski. The ALJ expressly discredited Young's testimony, methodically discrediting Young's account of the extent of his pain. See Loving v. Dept. of Health and Human Services, Secretary, 16 F.3d 967 (8th Cir. 1994) (ALJ carefully discredited plaintiff's claim to be disabled due to back pain and discomfort). ALJ Ingrassia determined that the claimant's complaints were not credible because they were inconsistent with his activities, his use of medication, his course of treatment, prior work history and the objective medical findings. Upon a review of the record, this court concludes that the ALJ adequately took into account the factors set out in Polaski, and that the ALJ's evaluation of Young's subjective complaints of pain was complete, sufficient and supported by substantial evidence.
First, the ALJ found that the objective medical evidence on the record as a whole did not support a finding of disability. This court agrees. A lack of objective medical evidence detracts from Young's subjective complaints. As recounted in detail previously, the objective medical evidence in the record, during the relevant time periods, does not support Young's subjective complaints of pain. While an ALJ may not reject a claimant's subjective complaints based solely on the lack of medical evidence to fully corroborate the complaint, Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996), the absence of an objective medical basis to support the degree of plaintiff's subjective complaints is an important factor in evaluating the credibility of the testimony and the complaints. Russell v. Sullivan, 950 F.2d 542, 545 (8th Cir. 1991); Edwards v. Secretary of Health Human Services, 809 F.2d 506, 508 (8th Cir. 1987).
Second, the ALJ noted that Young had a poor prior work record which detracted from his credibility. Specifically, the ALJ noted that although Young had earnings of $15,008 in 1993, he had negligible earnings of $2,425.00 in 1992 and $96 in 1991. An ALJ may discount a claimant's credibility based upon his poor work record. Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993); see also Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993).
Third, Young's daily activities are not indicative of a disabling impairment. The ALJ noted that he resides with his wife, son, age 14, and daughter, age 3. He watches his young daughter while his wife is at work. He vacuums. Although Young alleges problems negotiating stairs, the bedrooms in his home are upstairs. The ALJ found that Mrs. Young generally corroborated Young's testimony specifically confirming that he could walk only one-half block at a time and had difficulties getting in and out of a tub and negotiating stairs. (R. 16). The ALJ concluded that these activities are inconsistent with Young's subjective complaints of pain. The court agrees with the ALJ's finding that Young's daily activities are inconsistent with his subjective complaints of a disabling impairment. Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992); Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987); see also Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992); Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987).
Fourth, the ALJ noted that during the pertinent time period, Young has received short courses of physical therapy and taken pain and non-steroidal anti-inflammatory medications for his cervical and arm problems and lower back and leg problems. The ALJ also noted that Young used a cane, which has not been prescribed, when walking longer distances. The ALJ concluded that this relatively minimal level of treatment is inconsistent with Young's allegations of disabling impairments. This court finds that the ALJ properly concluded that Young's minimal course of treatment and history of pain medication were not indicative of disabling pain. Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir. 1994). See also Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987) (treatment by hot showers and taking dosages of Advil and aspirin do not indicate disabling pain); Cruse v. Bowen, 867 F.2d 1183, 1187 (8th Cir. 1989) (minimal consumption of pain medication reveals lack of disabling pain); Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988) (failure to seek aggressive treatment and limited use of prescription medications not suggestive of disabling pain).
For these reasons, the ALJ found Young's subjective complaints to be not entirely credible. See Dixon, 905 F.2d at 238 ("If an ALJ explicitly discredits a claimant's testimony and gives a good reason for doing so, we will normally defer to that judgment."). The ALJ did not find that Young suffered no pain. Rather, the ALJ found that Young's impairments were not as severe as he alleged. Russell v. Sullivan, 950 F.2d 542, 545 (8th Cir. 1991). The court finds the reasons offered by the ALJ in support of the ALJ's credibility determination to be complete, sufficient and based on substantial evidence. Furthermore, any deficiency of the ALJ's discussion of Young's testimony with respect to his subjective complaints of pain does not require reversal because this court concludes that the ALJ's decision is supported by substantial evidence on the record as a whole. See Jones, 122 F.3d at 1151 ("`We will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a claimant's testimony of disabling pain.'").
2. Did the ALJ address the credibility of Mrs. Young?
Young also argues that the ALJ failed to address the credibility of Mrs. Young. Specifically, Young asserts that the ALJ only mentioned Mrs. Young's testimony, and because the ALJ did not address her credibility, her testimony should be considered credible. The court disagrees.
In Young v. Apfel, ___ F.3d ___, 2000 WL 1036209 (8th Cir. July 28, 2000), the Eighth Circuit Court of Appeals stated that because the same evidence also supports discounting the testimony of the claimant's spouse, the ALJ's failure to give specific reasons for disregarding the spouses testimony was inconsequential. Id. at *2 (citing Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir. 1995) (arguable failure of ALJ specifically to discredit witness has no bearing on outcome when witness's testimony is discredited by same evidence that proves the claimant's testimony not credible)). In this case, the ALJ expressly stated that "the claimant's wife generally corroborated the claimant's testimony specifically confirming the claimant could walk only one-half block at a time and had difficulties getting in and out of a tub and negotiating stairs." (R. 16). Although not expressly discrediting Mrs. Young's testimony, the ALJ did, in fact, implicitly discredit her testimony. See Carlson v. Chater, 74 F.3d 869, 871 (8th Cir. 1996) ("Although specific delineations of credibility findings are preferable, an ALJ's arguable deficiency in opinion-writing technique does not require us to set aside a finding that is supported by substantial evidence."). This is so because by stating that Mrs. Young's testimony corroborated Young's testimony, which the ALJ discredited, the ALJ implicitly found that Mrs. Young's testimony was likewise not credible. While it is preferable to have explicit, specific findings concerning the credibility of each witness, this court concludes that any deficiency in the case does not require reversal because the ALJ's conclusion is supported by substantial evidence.
V. CONCLUSION
The court concludes that the ALJ's analysis of Young's subjective complaints of pain in accordance with the Polaski factors was sufficient and complete. Similarly, the court concludes that the ALJ did adequately address the credibility of Mrs. Young. Therefore, the court concludes that judgment be entered in favor of defendant Commissioner and against plaintiff Young.
IT IS SO ORDERED.