Summary: Plaintiff sought judicial review of SSA’s denial of disability benefits. On cross motions for summary judgment, the court recommended a finding that the ALJ did properly evaluate plaintiff’s subjective complaints of pain under Polaski and that the ALJ’s credibility determination is supported by substantial evidence. The court also recommended a finding that the Appeals Council correctly concluded that the additional evidence of seizure activity was not material and did not give rise to a basis for changing the ALJ’s decision, given the hypothetical presented to the vocational expert took into account the seizure disorder.

Case Name: Thomas Remmick v. SS Commissioner

Case Number: A3-00-147

Docket Number: 15

Date Filed: 3/22/02

Nature of Suit: 863

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

            Plaintiff Thomas L. Remmick (hereinafter “Remmick,” “claimant” or “plaintiff”) initiated this action under 42 U.S.C. §405(g) seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Before the court are both parties’ motions for summary judgment. (Doc. #’s 13 & 14). For the reasons articulated in this memorandum, the court recommends that defendant’s motion be granted and the Commissioner’s final decision be affirmed.

I. Background

            Plaintiff applied for Disability Insurance in March 1999, alleging a disability onset date of January 1997. The State agency and the Social Security Administration denied the application initially and upon reconsideration. A hearing was held before an Administrative Law Judge (ALJ) on January 11, 2000. The ALJ issued a decision on April 7, 2000, finding that although the plaintiff “has severe impairments consisting of spondylolisthesis of L5-S1, partial complex seizure disorder and a depressive disorder” the plaintiff does not have an impairment or combination of impairments which meets or equals Listing level severity. (Tr. 19). The ALJ also found that plaintiff “is able to perform substantial gainful activity” and is therefore “not under a disability as defined in the Social Security Act and regulations.” (Tr. 17).

            In arriving at his conclusion that the plaintiff “has the residual functional capacity for a limited range of light work” the ALJ undertook the sequential evaluation process outlined in 20 FR 404.1520. First, the ALJ found that the plaintiff was not engaging in substantial gainful activity nor had he so engaged during the period of time under adjudication. The ALJ next determined that plaintiff’s impairments of spondylolisthesis of L5-S1, partial complex seizure disorder and a depressive disorder are severe, but that plaintiff “does not have an impairment or combination of impairments which meets or equals Listing level severity.” (Tr. 19).

            The ALJ further recognized that the sequential evaluation requires a determination of whether, despite plaintiff’s impairments, he retains the functional capacity to return to the kind of work he performed in the past. (Tr. 19). To make this determination, the ALJ undertook a thorough consideration of plaintiff’s residual functional capacity.

            The ALJ noted that plaintiff is able to lift 10 pounds frequently and 20 pounds occasionally, stand and walk about six hours in an eight hour period, and sit for about six hours in an eight hour period. (Tr. 19). In addition, the ALJ found that plaintiff is able to do occasional climbing, balancing, stooping, kneeling, crouching and crawling and although he must avoid certain work hazards, he does not have any significant mental impairments in his ability to understand, remember, and carry out short and simple instructions. (Tr. 19). These findings are based on the medical record which reflects a history of complaints of low back pain, culminating in surgery. (Tr. 20). Subsequent to the surgery the medical records reflect a limited range of motion, but otherwise unremarkable (Tr. 20). Further, in the post surgical report plaintiff’s physician opined that he could return to light work. (Tr. 20).

            As to plaintiff’s seizure disorder, the ALJ noted that plaintiff’s physician had diagnosed “‘probable’ partial seizure disorder” and that the diagnosis “is not at all secure.” (Tr. 21). Finally, the ALJ did evaluate plaintiff’s complaint of depression, noting that plaintiff has been diagnosed with an Adjustment Disorder with depressed mood and Pain Disorder associated with physical and psychological factors, but only mildly so, and the condition is being treated with medication. (Tr. 22).

            Before arriving at his conclusion that the evidence supports a residual functional capacity for limited light work, the ALJ evaluated the “Conditionally Valid” functional capacity assessment (FCA) from Meritcare Medical Center dated March 25, 1999. (Tr. 22). It was conditional in the sense that the functional overview was the levels perceived by the plaintiff as his capability. Even with these subjective limits on function the FCA concludes that plaintiff is able to perform some work. (Tr. 22).

            At the time of the hearing before the ALJ, Lorna Mathias, a vocational expert, identified a number of jobs locally and nationally that plaintiff would be able to perform, including parking lot attendant, security guard and telemarketer. (Tr. 23). Accordingly, the ALJ was compelled to make a finding of “not disabled.” (Tr. 24).

II. Discussion and Analysis

            Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find that it is supported by substantial evidence appearing in the record as a whole. See id.; Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992); Consolidated Edison Co., et al. v. National Labor Relations Bd., et al., 305 U.S. 197, 229 (1938). The review of the record is more than a search for evidence supporting the Commissioner's decision; the court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health & Human Services, 879 F.2d 441, 444 (8th Cir. 1989).

            Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than twelve months . . .." 42 U.S.C. § 1382c(a)(3)(A) (Supp. 1997). The impairment(s) must be so severe that the applicant 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 the national economy." 42 U.S.C. § 1382c(a)(3)(B) (Supp. 1997).

            The applicant bears the burden of proving disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). "However, if the claimant can demonstrate that []he is unable to do past relevant work, the burden shifts to the [Commissioner], who must show that substantial gainful activity exists in the national economy which the claimant can perform." Id.

            Plaintiff argues that the ALJ’s finding that plaintiff’s complaints of disabling pain and fatigue were not completely credible is not supported by substantial evidence and that the ALJ did not properly consider plaintiff’s complaints under Polaski v. Heckler, 739 F.2d 1320 (8^th Cir. 1984). However, plaintiff does note that the ALJ specifically found that: “The subjective evidence, analyzed pursuant to the guidelines of Social Security Ruling 96-7p, fails to credibly warrant a more restrictive residual functional capacity for the reasons set forth in the body of the decision.” (Tr. 25). After considering the evidence in the record as a whole, the undersigned recommends a finding that the ALJ did properly evaluate plaintiff’s subjective complaints of pain under Polaski and that his credibility determination is supported by substantial evidence.

            When evaluating a disability claim based in part on pain, an ALJ must consider the claimant’s subjective complaints under the standard set forth in Polaski. Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995). Under Polaski, the ALJ must consider all evidence presented that relates to plaintiff’s subjective complaints in determining whether such complaints are credible evidence of a disability. 739 F.2d at 1322. An ALJ may not reject a claimant’s subjective complaints solely because of a lack of medical evidence. Benson v. Heckler, 780 F.2d 16, 17 (8th Cir. 1985). Furthermore, “before an ALJ may reject a claimant’s subjective complaints of pain, the ALJ must make express credibility determinations” and “detail[] his reasons for discrediting the testimony.” Ricketts v. Secretary of Health and Human Services, 902 F.2d 661, 664 (8th Cir. 1990); Brock v. Secretary of Health and Human Services, 791 F.2d 112, 114 (8th Cir. 1986). These specific findings “must demonstrate that [the ALJ] evaluated all the evidence” relevant to the claimant’s pain. Herbert v. Heckler, 783 F.2d 128, 130 (8th Cir. 1986).

            In this case it does appear that the ALJ did consider plaintiff’s complaints of pain even though they were not strongly supported by the medical evidence. Plaintiff does not need to resort to prescribed pain medication to control the pain, but rather takes Extra Strength Tylenol and Tylenol P.M. (Tr. 115, 134, 148). The lack of significant pain medication supports the ALJ’s determination. Singh v. Apfel, 217 F.3d 586, 591 (8^th Cir. 2000). Further, plaintiff does engage in routine daily activities, and is able to care for his personal needs. Thus, although the undersigned agrees that the ALJ’s characterization of the plaintiff’s testimony as to his activities is a bit strong, the undersigned recommends a finding that the ALJ properly concluded that the record reflects plaintiff’s ability to accomplish daily activities and that the activities are consistent with the functional capacity evaluation.

            Plaintiff next challenges the hypothetical questions presented to the vocational expert, Lorna Mathias. Specifically, plaintiff asserts that the hypothetical questions do not take into account his need to nap, limits to his lifting, walking and sitting tolerances, and his excessive absenteeism. The Commissioner asserts that the VE correctly considered the claimant’s age, education, past relevant work experience, and an RFC to perform light work with limitations in determining there are jobs in the regional and national economy plaintiff could perform. The undersigned agrees with the defendant that the VE properly evaluated the evidence to reach her conclusion plaintiff could find such gainful employment. The RFC indicates a capacity for light work in that plaintiff could lift up to 10 pounds frequently and 20 pounds occasionally, could stand and/or walk for up to six hours in an eight hour day, and could sit six out of eight hours. (Tr. 286). The limitations identified by plaintiff are not supported by the medical evidence, and there is some question that plaintiff did not exert maximum effort on the RFC, lending itself to the ALJ’s finding that plaintiff’s subjective allegations of pain were not entirely credible. (Tr. 24).

            Finally, plaintiff asserts the new and material evidence, that being the eye witness statement describing plaintiff’s seizures, was not properly considered by the Appeals Council in affirming the decision of the ALJ. The undersigned disagrees. Specifically, the Appeals Council stated it did consider the additional evidence “but concluded that this evidence does not provide a basis for changing the Administrative Law Judge’s decision.” (Tr. 5). The undersigned agrees. The ALJ presented a number of hypothetical scenarios to the VE to determine if there are jobs in the regional or national economy plaintiff could perform. One of the scenarios specifically asked the VE to consider the seizure limitations placed by Dr. Mark. (Tr. 79). The VE testified she had reviewed the limitations and concluded they would not prevent the claimant from performing the parking lot attendant job, the security guard position, or telemarketer. In presenting this scenario to the VE for consideration the ALJ assumed the validity of the seizure disorder and gave full credence to its existence. Thus, the Appeals Council correctly concluded that the additional evidence was not material and did not give rise to a basis for changing the ALJ’s decision.

III. Conclusion

            In sum, the undersigned finds that the ALJ’s findings that plaintiff’s claim of disabling pain is not credible and that plaintiff retains the RFC to perform a limited range of sedentary or light work are all supported by substantial evidence.             

For the foregoing reasons, IT IS RECOMMENDED:

            1.         Plaintiff’s Response to Motion for Summary Judgment be DENIED. (Doc. #14).

            2.         Defendant’s Motion for Summary Judgment be GRANTED. (Doc. #13). Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff’s complaint and cause of action.

            Any party may file an objection to this recommendation on or before March 27, 2002..

            Dated this _____ day of 2002.

___________________________________
Karen K. Klein
United States Magistrate Judge