Summary: Plaintiff sought judicial review of SSA's denial of disability benefits. On cross-motions for summary judgment, the court held that substantial evidence in the record as a whole supports the ALJ's finding that plaintiff's subjective complaints of chronic fatigue due to heart problems and Marfan's Syndrome were not fully credible. Furthermore, the ALJ's finding that plaintiff retained the RFC for sedentary work was also based upon substantial evidence. Finally, the additional evidence submitted by the plaintiff to the Appeals Council was consistent with the ALJ's findings and would not have changed his decision. SSA's decision was affirmed.

Case Name: Perry v. Social Security
Case Number: A3-97-2
Docket Number: 15
Date Filed: 2/11/98
Nature of Suit: 863

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

Plaintiff Sheila K. Perry initiated this action under 42 U.S.C. § 405(g) (Supp. 1997) seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for disability insurance and Supplemental Security Income (SSI) benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383c (1991 and Supp. 1997). Before the court are both parties' motions for summary judgment. (Doc. #10, 12.) For the reasons articulated in this memorandum, the court recommends that the Commissioner's motion be granted and his final decision affirmed.

I. Background

Plaintiff submitted applications for disability insurance and SSI benefits on November 29, 1994. (Tr. at 122-31.) Plaintiff alleged that she had been disabled since October 21, 1994 due to Marfan's syndrome,⁽²⁾ which had caused cardiovascular problems, visual problems and low back pain. (Tr. at 41.) The Social Security Administration (SSA) denied plaintiff's applications initially and upon reconsideration. (Tr. at 142-47, 169-72.) Plaintiff then timely requested a hearing before an ALJ. (Tr. at 173-74.) Following the administrative hearing, the ALJ found that plaintiff had "severe Marfan's syndrome status post surgical repair and degenerative joint disease of the lumbar spine, but that she [did] not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. at 53.) The ALJ then found that plaintiff was "unable to perform her past relevant work," but did retain the residual functional capacity to perform a significant number of jobs in the sedentary work category. (Tr. at 54.) Therefore, the ALJ determined that plaintiff "was not under a 'disability,' as defined in the Social Security Act, at any time through the date of this decision." (Tr. at 54.)

Plaintiff then timely filed a request for review of the ALJ's decision with the Appeals Council.⁽³⁾ (Tr. at 31-34, 57-58.) After considering the additional evidence submitted by plaintiff, the Appeals Council found no grounds to review the ALJ's determination and denied plaintiff's request. (Tr. at 3-4.) Accordingly, the Appeals Council affirmed the ALJ's decision as the final decision of the Commissioner. (Id.)

II. Discussion

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) (citation omitted).

Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity⁽⁴⁾   by reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A) (Supp. 1997). The impairment(s) must be severe enough so 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." Id. §§ 423(d)(1)(B), 1382c(a)(3)(B).

Claims of disability are evaluated using a five-step sequential review. See 20 C.F.R. §§ 404.1520, 416.920 (1997).⁽⁵⁾ The first step is to determine whether the applicant is engaged in substantial gainful employment. If the applicant is so engaged, there is no disability. If, however, the applicant is not engaged in substantial gainful employment, the second step is to consider whether the applicant has an impairment or combination of impairments that significantly limit his or her ability to perform basic work activities.⁽⁶⁾  If there is no limiting effect, the applicant is not disabled. But, if the applicant is significantly limited by his or her impairment(s), the third step is to determine whether the impairments meet or equal a listed impairment. If the impairments do meet or equal a listed impairment, the applicant is disabled. The fourth step is to determine how the impairments affect the applicant's ability to perform past relevant work. The applicant is not disabled if he or she is still able to perform past relevant work. Finally, the fifth step is to determine whether the applicant can perform other work. If the applicant cannot perform other work, the applicant is disabled.

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 she is unable to do past relevant work, and thereby reaches the fifth step in the process, the burden shifts to the [Commissioner], who must show that substantial gainful activity exists in the national economy which the claimant can perform." Id.

In the instant case, the ALJ determined that plaintiff has the residual functional capacity (RFC) to perform sedentary work, including jobs such as "receptionist, telephone solicitor, small parts assembler, sorter, and packager," and that such jobs are available in significant numbers in the national economy. (Tr. at 54.) Thus, the ALJ determined that plaintiff was not disabled at the fifth and final step in the evaluation process. See 20 C.F.R. §§ 404.1520(f), 416.920(f). Plaintiff asserts that the ALJ's findings are not supported by substantial evidence. (Doc. #11.) Specifically, plaintiff argues that the ALJ's finding that plaintiff has the RFC to perform sedentary work is not warranted by the record. Plaintiff asserts that the ALJ failed to adequately consider plaintiff's need for periods of rest during the day and her intolerance for stress, and also that the ALJ erred in finding that plaintiff's level of daily activity was inconsistent with her complaints of chronic fatigue. Plaintiff argues that the additional evidence submitted to the Appeals Council further shows that the ALJ's determination is not supported by substantial evidence. The court disagrees with plaintiff's arguments.

In making his determination, the ALJ first reviewed the objective medical evidence in the record. The ALJ found that the medical records indicated that plaintiff had the RFC to perform sedentary work, which involves only occasional lifting of up to 10 pounds and only occasional walking or standing. 20 C.F.R. §§ 404.1567(a), 416.967(a). The ALJ noted that although plaintiff had undergone surgery to repair an aortic dissection (or tear) in October 1994, the record did not indicate that her cardiac impairment had disabled her for a twelve month period, as required by the regulations. The progress notes from plaintiff's last cardiac rehab session on February 23, 1995 indicate that plaintiff exercised for 30 minutes and "tolerate[d] this level of exercise well . . . without chest pain or SOB [shortness of breath]." (Tr. at 271.) On March 15, 1995, Dr. Jenny, plaintiff's treating cardiologist, noted that "patient has done well since [her surgery]." Tr. at 247. In a May 30, 1995 letter, Dr. Jenny stated that plaintiff had been "stable" following her surgery, but that she would "need to avoid heavy exertional activities" and that this would be a "life-long concern." (Tr. at 289.) Other medical records indicate that Dr. Jenny had imposed a ten pound lifting restriction on plaintiff. (Tr. at 287.) Dr. Jenny also indicated that plaintiff would require "periodic times of rest during the day." (Tr. at 289.) The ALJ also noted that February 16, 1994 progress notes from Vocational Rehab indicated that Dr. Johnson had told plaintiff "no physical labor for the future." (Tr. at 282.) However, this information was received from plaintiff and the record contains no assessment by Dr. Johnson explaining or supporting this opinion.

Based on the above evidence, the ALJ's conclusion that the medical records indicated that plaintiff could perform sedentary work is supported by substantial evidence. Of particular importance is the fact that plaintiff's treating physician, Dr. Jenny, did not indicate that plaintiff was precluded from any work. In fact, the restrictions imposed by Dr. Jenny still allow plaintiff to perform sedentary work, since such work does not require lifting of over ten pounds and does generally allow for morning and afternoon breaks, in addition to a lunch break, as testified to by the vocational expert. (Tr. at 118.) Since "[t]he opinion of a treating physician is entitled to great weight," Dr. Jenny's opinion alone may provide substantial evidence to support the ALJ's finding that plaintiff retained the RFC for sedentary work based on the medical records. Gude v. Sullivan, 956 F.2d 791, 793 (8th Cir. 1992). When Dr. Jenny's opinion is combined with the other medical records, it is clear that substantial evidence supports the ALJ's conclusion.

In addition to considering the objective evidence, when evaluating a disability claim based on fatigue, an ALJ must also consider the claimant's subjective complaints under the Polaski factors.⁽⁷⁾ Anborn v. Sullivan, 959 F.2d 111, 112 (8th Cir. 1992). Under Polaski, the ALJ must consider all evidence presented related to plaintiff's subjective complaints in determining whether such complaints are credible evidence of a disability. 739 F.2d at 1322. Furthermore, "'before an ALJ may reject a claimant's subjective complaints of [fatigue], 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); Douthit v. Bowen, 821 F.2d 508, 509 (8th Cir. 1987) (quoting Brock v. Secretary of Health and Human Services, 791 F.2d 112, 114 (8th Cir. 1986)). The ALJ in this case properly evaluated plaintiff's claim of work-precluding fatigue under the Polaski factors and his findings with respect to plaintiff's credibility are adequately explained and supported by substantial evidence contained in the record as a whole.

In evaluating plaintiff's claim of chronic fatigue, the ALJ first found that plaintiff's work record was not a negative feature in his evaluation. (Tr. at 20.) The record indicates that plaintiff had worked at several different jobs until the time of her surgery and has not worked since that time, which is consistent with her claim of disability. (Tr. at 178.) However, there is also no evidence in the record that plaintiff has attempted to do any work since her surgery, even though she is able to attend college on a part-time basis. Thus, the ALJ's finding that plaintiff's work record was neither a positive nor negative factor is supported by the record.

Next, the ALJ found that plaintiff's daily activities were inconsistent with her complaints of disabling fatigue, noting that this was a significant factor in his decision. (Tr. at 48-49.) The ALJ relied primarily on plaintiff's own testimony regarding her daily activities. Plaintiff lives alone and is able to care for herself without any assistance. (Tr. at 86-87.) She occasionally visits friends and goes to church. (Tr. at 88.) Plaintiff has also enrolled at Moorhead State University and has three classes on Mondays and Wednesdays and two classes on Fridays. (Tr. at 84-86.) On days she has class, plaintiff gets up at 7:00 or 7:30, goes to school, and doesn't get home until around 5:00, except on Fridays when she is done with class at 1:00. Between classes, plaintiff stated that she usually studies or goes to the computer lab, and "once in a while" takes a nap in her car. At the time of the hearing, plaintiff was considered only a part-time student. Plaintiff had initially enrolled for one additional class, which did make her a full-time student, but dropped that class. Although plaintiff states that she had to drop that class because the additional stress and fatigue it caused her to miss two weeks of class, at the hearing plaintiff also indicated that another reason she dropped it was because it required more advanced math than her abilitiy level and that it was not a required class for her major. (Tr. at 92.) Plaintiff does usually take a nap when she gets home from class and often falls asleep while reading or studying at night. Plaintiff stated that she had missed a total of four of her remaining classes at the time of the hearing. (Tr. at 93.) Plaintiff also testified that on days she doesn't have class, she runs errands and takes care of her personal living needs. (Tr. at 94.)

As the above evidence indicates, plaintiff's daily activities are not consistent with complaints of work-precluding fatigue. Although plaintiff takes naps when she gets home from class, she only occasionally rests between classes. As the ALJ found, there is no evidence that plaintiff's fatigue has significantly affected her ability to care for herself or her performance in school. In fact, plaintiff testified that she had studied every day except one (her birthday) in the two weeks prior to the hearing to get caught up. (Tr. at 78.) Additionally, plaintiff testified that activities such as walking across campus or climbing stairs caused her to be short of breath and fatigued, and that she cannot stand for more than thirty minutes at a time without getting dizzy. (Tr. at 76-77, 82.) However, even these physical limitations would not preclude her from sedentary work, since such jobs only require occasional standing or walking. Thus, plaintiff's daily acitivities indicate that she does retain the RFC for sedentary work, and the ALJ's finding on this factor is supported by substantial evidence.

The ALJ also compared plaintiff's description of the duration, frequency and intensity of her fatigue to the evidence in the record in order to evaluate her credibility. (Tr. at 49-50.) Here, the ALJ found that plaintiff's complaints in this respect were inconsistent with the objective medical evidence. The ALJ relied on plaintiff's cardiac rehab report, which showed that she had tolerated moderate exercise well, (Tr. at 271), and on her treating cardiologists opinion which stated that plaintiff should avoid exertional activities and that she needed rest periods during the day, but did not discuss any chronic or extreme fatigue that would preclude any work (Tr. at 289.) Also, the amount of medical treatment received by plaintiff is inconsistent with the claimed severity of her fatigue and shortness of breath. Although plaintiff asserts that the lack of medical treatment is due to financial concerns, the records from the treatment she has received do not indicate that plaintiff's fatigue is as severe as claimed. (Tr. at 245-72, 283-288.) The ALJ's finding with respect to this factor is therefore also proper.

The next Polaski factor discussed by the ALJ was precipitating or aggravating factors, which the ALJ also found significant in his decision. (Tr. at 50.) As stated above, although plaintiff testified that walking, climbing or standing aggravated her fatigue, sedentary work requires these activities only occasionally, and thus would not prevent her from performing that work. Furthermore, as the ALJ found significant, plaintiff has not followed through with her recommended treatment. Plaintiff did not complete the cardiac rehab program as recommended by her doctor. (Tr. at 269.) Although plaintiff states that financial concerns prevented her from completing her rehab, she has also not followed through with her home exercise program as recommended and continues to smoke. (Tr. at 98-99, 271.) Plaintiff's failure to follow her recommended treatment plan is significant, as her doctors indicated that she became "significantly deconditioned" because of the extended recovery time she required after her surgery. (Tr. at 270.) The record shows that plaintiff has control of some factors that could improve or eliminate her fatigue, thus allowing her to work. Therefore, the ALJ's findings on this factor are based upon substantial evidence. See 20 C.F.R. §§ 404.1530(a), 416.930(a); Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) ("Failure to follow a prescribed course of remedial treatment without good reason is grounds for denying an application for benefits").

The ALJ next discussed whether plaintiff's medications affected her impairments. (Tr. at 50.) As the ALJ found, there is little evidence in the record regarding the effectiveness or side-effects of plaintiff's medications. The ALJ, therefore, properly concluded that there is no evidence that plaintiff's medications would affect plaintiff in a way consistent with her subjective complaints of severe fatigue.

The final factor discussed by the ALJ was whether the evidence in the record was consistent with the functional restrictions claimed by plaintiff because of her fatigue. (Tr. at 50-51.) As stated above, the ALJ did find that plaintiff had restrictions related to lifting and physical exertion. Plaintiff's testimony also indicated restrictions related to prolonged walking, standing, or climbing. However, as already stated, these restrictions do not preclude her from performing sedentary work. Plaintiff argues that the ALJ did not adequately consider plaintiff's need for rest during the day as a restriction. However, as the ALJ noted, plaintiff's daily activities, as set out above, do not indicate that plaintiff would need rest periods that are inconsistent with those that a significant number of sedentary jobs provide. Plaintiff is able to attend class and study for a full day without significant problems, and only occasionally takes naps between her classes. Even accepting plaintiff's need for rest late in the afternoon, such a restriction would not preclude her from working a standard eight-hour day. Furthermore, even on days plaintiff does not have class, plaintiff's daily activities do not indicate that she needs to rest the entire day to recover from the previous day of class. To the contrary, plaintiff testified that she had studied every day but one for the two weeks prior to the hearing. Thus, the evidence supports the ALJ's finding that the functional restrictions claimed by plaintiff are not consistent with the evidence in the record.

In sum, the ALJ properly evaluated plaintiff's complaints of severe fatigue under the Polaski factors and adequately explained his decision. Furthermore, substantial evidence in the record supports the ALJ's finding that plaintiff's complaints are not fully credible. Therefore, since the ALJ's credibility determination is based on substantial evidence, it must be affirmed. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).

The opinion of the VE also provides support for the ALJ's conclusion that plaintiff retained the RFC to perform sedentary work. See Flynn v. Chater, 107 F.3d 617, 621 (8th Cir. 1997) ("A vocational expert's testimony based on a properly-phrased hypothetical question constitutes substantial evidence.") (internal quotations omitted). Based on the hypothetical proposed by the ALJ which included the physical limitations the plaintiff was found to have, the VE opined that plaintiff would be able to perform jobs such as receptionist, telephone solicitor, small parts assembler, parts sorter, or packager. (Tr. at 113-118.) The VE further testified that these jobs were considered low stress and would have stress levels equal to or less than which plaintiff experiences at school. In the VE's opinion, the only limitation that would prevent plaintiff form being able to perform these jobs would be if she required rest periods in addition to the morning, lunch and afternoon breaks normally allowed with these positions. The VE also indicated that several thousand of these jobs existed in this region.

Based on the VE's testimony, the only limitation that would preclude plaintiff from working would be the need for additional break periods. However, as shown above, substantial evidence exists to support the ALJ's conclusion that plaintiff does not need rest periods in addition to the normal breaks provided with the above-mentioned jobs. Thus, the ALJ's finding that the plaintiff retained the RFC for performing sedentary work is based upon substantial evidence.

Plaintiff also argues that the new evidence submitted to the Appeals Council proves that the ALJ's decision is erroneous. The Appeals Council reviewed plaintiff's additional evidence, but found no grounds to reverse the ALJ's decision. (Tr. at 3-4.) In reviewing additional evidence not before the ALJ at the time of his/her decision, this court must speculate as to how the ALJ would have weighed the evidence, and determine whether the ALJ's decision is based upon substantial evidence in light of the new evidence. Flynn v. Chater, 107 F.3d 617, 621 (8th Cir. 1997). The additional evidence submitted consists of the opinions of Dr. Homans, a consulting cardiologist, Dr. Peshimam, a rheumatologist, and an additional opinion from Dr. Jenny. However, none of these new opinions present any evidence inconsistent with the evidence before the ALJ and undoubtedly would not have changed the ALJ's decision. Dr. Homans April 19, 1996 letter states that plaintiff's heart "is able to sustain fairly vigorous exercise," and that he "cannot, on the basis of these findings, explain [her] extreme fatigue." (Tr. at 26.) Dr. Jenny's July 1, 1996 opinion states that plaintiff is precluded from "persistent high level work activities, especially those [that] do not allow her a sufficient period of rest." (Tr. at 12-13.) Dr. Jenny also stated that plaintiff should avoid work that involves too much stress. (Tr. at 13.) Both opinions are consistent with the evidence in the record that was before the ALJ and provide further support for the ALJ's finding that plaintiff retained the capacity to perform sedentary work.

The only new evidence that is inconsistent with the record before the ALJ is Dr. Peshimam's opinion of May 8, 1996, which states that "considering [plaintiff's] severe fatigue it is quite possible that she may not be able to do work in a sustained period of time for more than 30 minutes." (Tr. at 20-22.) However, Dr. Peshimam also states that plaintiff "should be able to lift and carry objects of 5 pounds and should be able to walk, stand and sit unless Dr. Jenny feels otherwise from a cardiology perspective for a reasonable amount of time; 15 to 30 minutes at a stretch should not be a problem for her." (Tr. at 22.) Since Dr. Peshimam's opinion about plaintiff's fatigue was "based on her subjective sense of fatigue," his/her opinion can be properly discredited. Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996) (holding that ALJ properly discounted treating psychiatrist's opinion where it was based on the subjective complaints of plaintiff, which were found to be not fully credible). The new evidence submitted by plaintiff would not have changed the ALJ's decision, and in fact, provides additional support for it.

III. Conclusion

Based on the above analysis, substantial evidence in the record as a whole supports the ALJ's finding that plaintiff's subjective complaints of chronic fatigue are not fully credible. Furthermore, the ALJ's finding that plaintiff retained the RFC for sedentary work, and that the Commissioner met his burden in showing that such work existed in significant numbers in the national economy is also based upon substantial evidence. Finally, the additional evidence submitted by the plaintiff is consistent with the ALJ's findings and would not have changed his decision. As such, the ALJ's decision must be affirmed.

IT IS RECOMMENDED:

That plaintiff's motion for summary judgment (doc. #10) be denied and defendant's motion for summary judgment (doc. #12) be granted. Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff's complaint and cause of action.

Pursuant to Local Rule 72.1(G)(5), any party may object to this recommendation within ten (10) days after being served with a copy thereof.

Dated: February ___ , 1998

Karen K. Klein
United States Magistrate Judge

1. Kenneth S. Apfel was sworn in as Commissioner of Social Security on September 29, 1997. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the court has substituted Kenneth S. Apfel for Acting Commissioner John J. Callahan as the defendant in this action.

2. Marfan's Syndrome is "an inherited disorder of connective tissue . . . , resulting in ocular, skeletal and, cardiovascular abnormalities." The Merck Manual, Sixteenth Ed., p. 221.

3. Plaintiff's request for review of the ALJ's decision was actually received by the Appeals Council one day late. (Tr. at 8.) However, the Appeals Council apparently determined that good cause existed for this minor delay and considered the request timely since it did address plaintiff's request for review. (Tr. at 3-4.)

4. "Substantial gainful activity means the performance of substantial services with reasonable regularity either in competitive or self-employment." Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).

5. If the Commissioner finds that the applicant is either disabled or not disabled at any point in the review, the Commissioner does not continue the review.

6. "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs," including:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521(b) (1997).

7. The Polaski factors include the claimant's prior work record and observations of third parties, including physicians, related to:

(1) the claimant's daily activities; (2) the duration, frequency and intensity of the pain [or fatigue]; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional limitations.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (citations omitted).