WILLIAM A. KNOX, United States Magistrate Judge.
This case involves two applications under the Social Security Act. The first is an application for disability benefits under Title II of the Act, 42 U.S.C. § 401 et seq. (Tr. 93-95). The second is an application for Supplemental Security Income (SSI) benefits based on disability under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 190-93). Plaintiff's applications were denied initially and on reconsideration (Tr. 194-98, 199-203). An administrative hearing was held on March 13, 1997 (Tr. 32-69). On June 18, 1997, the administrative law judge (ALJ) rendered a decision in which he found that plaintiff was not "disabled," as defined in the Social Security Act, at any time when she met the earnings requirement of the law, or at any time through the date of the decision. On October 6, 1997, after consideration of additional medical evidence (Tr. 204-225), the Appeals Council of the Social Security Administration denied plaintiff's request for review (Tr. 5-6). The decision of the ALJ is the final decision of the Commissioner.
Plaintiff's insured status under Title II of the Act expired December 31, 1995. See 42 U.S.C. § 416(I)(3)(B); 20 C.F.R. § 404.130. To be eligible for Title II benefits, plaintiff must show that she was disabled on or before that date. To be eligible for SSI benefits under Title XVI, plaintiff must establish that she was disabled while her application was pending. 42 U.S.C. § 1382(c); 20 C.F.R. § 416.330 and 416.335.
Plaintiff filed a Complaint, pursuant to Local Rule 9.1, challenging the decision of the Commissioner to deny benefits.
Statement of Facts
On her applications for benefits under Titles II and XVI, plaintiff alleged disability since January 1, 1995 (Tr. 93-95, 190-93). Plaintiff says she cannot work due to back pain that she believes is getting worse (Tr. 39, 40). Plaintiff was born on July 15, 1953. She has a high school education. (Tr. 37-38.) Between 1972 and 1992, plaintiff worked sporadically at several types of jobs, including housekeeper/babysitter, cook/waitress, nurses aid and curtain stacker (Tr. 105). Plaintiff had no earnings for 1974-76, 1981, 1983-85, and 1989 (Tr. 98). Plaintiff's last job was as a stacker at a curtain factory. She quit that job in 1992 when she got married. (Tr. 38.) Plaintiff now lives with her three-year-old son (Tr. 37).
In the disability report filed with her applications, plaintiff stated that she walks six days a week for 35 minutes. She cooks for two hours a day, does laundry twice a week, washes dishes every other day, vacuums twice a week, makes two beds a day, drives, and attends weekly church services. (Tr. 105.) At the administrative hearing, plaintiff testified that she can make beds, prepare meals, wash dishes, vacuum, and do other normal house work, but that she has to take breaks about every hour. She rests with her feet up for thirty minutes, and if the pain is bad, she takes a pain pill. (Tr. 42, 44.) Plaintiff testified that she tends to her son, but that she has difficulty getting on the floor to play with him. She can kneel down to bathe him. Plaintiff noted that her arms get tired if she raises them above her head for five minutes and she has to alternate hands when carrying out the trash. (Tr. 43, 44.)
Plaintiff was injured in a swimming accident when she was a teenager. She states that her brother jumped into the water after her and hit her on the left side of her back. (Tr. 39.) On May 16, 1996, plaintiff saw Stephen R. Adams, M.D., complaining of back pain. Her range of motion was adequate and her gait was steady. Straight leg raising was negative and reflexes were normal. Plaintiff did have tenderness at the S1 joint. Dr. Adams diagnosed joint strain. (Tr. 145.) Plaintiff told Dr. Adams that she was trying to get disability because her caseworker told her that she must look for a job if she was not disabled (Tr. 145).
Plaintiff saw Robert Braco, M.D., on May 22, 1996, due to back pain and upper left arm pain. Plaintiff's examination was essentially normal except for a small amount of midline discomfort over the nasal neck muscles during pull, flexion, and extension maneuvers. Plaintiff also described some hamstring pulling. Plaintiff's reflexes were normal. Dr. Braco noted that plaintiff appeared tired and might be feeling the stress of raising a young child. He said that she may have a reasonable bout of muscular back pain with activity, but he would not medically restrict her from driving or independent activity. (Tr. 147.)
On June 25, 1996, plaintiff saw Ronald Buening, D.O., of the Family Medical Center of Seymore. She complained of back pain, and told Dr. Buening that she was trying to get disability and she needed a doctor to write a letter stating what he found. (Tr. 160.) Dr. Buening diagnosed back strain (Tr. 158). Plaintiff had a full range of motion in her lumbar spine with minimal discomfort with palpation (Tr. 158). She told Dr. Buening that she could lift and carry 25 pounds for ten feet without much difficulty. She could drive and do house work without much difficulty. She said that she routinely did stretching exercises for her low back and could walk one mile with some discomfort toward the end of the mile. (Tr. 159.)
The next day, June 26, 1996, plaintiff had an X-ray of her lumbar spine. It showed only mild levoscoliosis, i.e., scoliosis to the left. The lumbosacral spine was otherwise adequately aligned. The vertebral body heights and disc space heights were well maintained. (Tr. 153.) An X-ray of plaintiff's left ribs identified no significant radiographic abnormalities (Tr. 152). Dr. Buening completed a medical source statement on November 7, 1996, stating that plaintiff had no physical impairment (Tr. 156-57).
Eva Wilson, Psy.D., did a psychological evaluation of plaintiff on December 3, 1996. Plaintiff told Dr. Wilson that she cared for her three-year-old and could do all of the household chores with lots of breaks. She told Dr. Wilson she often had difficulty reading and she needed special education in her teenage years. (Tr. 162.) Dr. Wilson found that plaintiff was functioning in the average range of intellectual functioning, with some difficulty in concentration and a low level of general information. Plaintiff had a Global Assessment of Functioning Scale score of 70 which was considered mild. (Tr. 163.) Dr. Wilson completed a medical source statement checklist which found that plaintiff: was not markedly limited in any area of functioning; was moderately limited in several areas, including ability to maintain concentration and attention for extended periods, perform activities within a schedule with regular attendance and punctuality, complete a workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, and sustain a ordinary routine without special supervision; was not significantly limited in her ability to remember locations and work-like procedures, to understand, remember and carry out either short, simple instructions or detailed instructions; nor was she significantly limited in any area of social interaction or adaptation. (Tr. 164-65.)
On February 25, 1997, plaintiff began seeing Kristen F. Glover, M.D., of the Family Medical Care Center (Tr. 179). Plaintiff came to see Dr. Glover because of low back pain and a desire for a statement of disability. At plaintiff's first examination, she had a full range of motion, no sensory or motor deficits in either the upper or lower extremities, no muscular point tenderness, and Dr. Glover could not reproduce plaintiff's pain. Dr. Glover recommended exercise, physical therapy, and pain modalities, if necessary, for plaintiff's low back pain. (Tr. 180.) She told plaintiff that she did not give statements of disability (Tr. 189).
Plaintiff saw Jennifer S. Mills, P.T., for physical therapy on March 3 and 10, 1997 (Tr. 181). Plaintiff demonstrated hamstring tightness and a decrease in reflex of her right leg, but her trunk range of motion was within normal limits (Tr. 182, 183).
Plaintiff returned to Dr. Glover on April 3, 1997. She had been released from physical therapy without meeting her goals. Dr. Glover noted that plaintiff was not complying with her home exercise program and she encouraged plaintiff to continue the home exercise program. Plaintiff was not taking a therapeutic dose of anti-inflammatory ibuprofen as she had been instructed, but was only taking her medication occasionally for pain. Plaintiff had some tenderness around the L3 to L5 regions of her back, but there were no spasms or other abnormality. The rest of the examination was normal and Dr. Glover noted that she had no objective findings to support plaintiff's complaints of low back pain. (Tr. 185-86). Dr. Glover stated that plaintiff "probably does have some low back pain." Dr. Glover also noted that plaintiff had signs and symptoms consistent with carpal tunnel syndrome. (Tr. 186.)
Plaintiff saw Dr. Glover again on May 2 and June 9, 1997. Other than some tenderness in plaintiff's lower back, her examinations were normal each time. At the June examination, Dr. Glover discussed the fact that plaintiff might never be pain free and that she would help plaintiff find ways to cope better with the pain. Dr. Glover felt that plaintiff had some depression as a result of her pain but that she thought an antidepressant would help. She suggested that plaintiff see someone at the Burrell Mental Health Center. (Tr. 208, 209, 213, 214.)
Dr. Glover saw plaintiff again on July 9, 1997. Plaintiff had some tenderness over the L3 to L5 region of her back and the bilateral sacral regions, and she also complained of pain from flexion, extension, and lateral bending. Plaintiff felt that the antidepressant she was taking was helping, but that the anti-inflammatory therapy, while improving function, was not improving her pain. (Tr. 206.)
On July 24, 1997, plaintiff saw Paul Schulte, M.D., of the Burrell Center for a one-hour initial assessment. Dr. Schulte's brief behavior assessment was anxious mood with possible episodic depression. He saw no evidence of memory problems, thought disorder or delusion. (Tr. 225.)
Plaintiff returned to Dr. Glover on August 6, 1997, for a follow-up examination of her chronic low back pain and depression. Plaintiff noted that her antidepressant medication made a noticeable improvement in her mood and anxiousness, but she felt the effect had leveled off. She did ask for a refill of the prescription. Plaintiff complained of pain with flexion and extension of her back and tenderness with palpation in the L3 to L5 region. There was no bony tenderness or pain with straight leg raising. (Tr. 204.)
At the administrative hearing, plaintiff testified that she was only pain free for four hours out of a 24-hour day (Tr. 46). She complained of a burning and stabbing feeling in her lower back and legs (Tr. 40-41). Plaintiff noted that she had difficulty bending, stooping, crawling, kneeling, and lifting, but she had no problem climbing, balancing, or crouching (Tr. 41, 45, 50-51). Plaintiff testified that she had difficulty sleeping two to three nights a week. She takes ibuprofen or prescription medication to relieve pain, and she has no side effects from her medication. (Tr. 41, 42, 58.) Plaintiff tried using a friend's back brace and that did work for her pain, but she stopped using it because she was afraid she would overdo (Tr. 56). She noted that the therapist had used heat and "electric shock" treatments that relieved her pain for about six hours, after which she took a pill to relieve her pain (Tr. 56-57).
Plaintiff testified that she could stand for thirty minutes at a time, for up to four hours in an eight-hour work day, and she could walk for thirty minutes at a time, for up to four hours in an eight-hour work day. She said she would have to rest with her feet up for thirty minutes in between. Plaintiff testified that she could sit for three hours continuously after which she would have to lie down for 30 to 45 minutes. (Tr. 47-49.) Plaintiff thought she could frequently lift and carry objects weighing less than ten pounds (Tr. 45-46).
Plaintiff testified that she read, watched television, and listened to the radio. She also visited friends and relatives, went for walks, tended her small garden, and took her son to the park. (Tr. 57-59.) She did housework, including making the bed, washing dishes, vacuuming, sweeping, dusting, mopping, cooking, laundry, sewing, and cleaning the bathroom (Tr. 42, 44, 57-58). Plaintiff was able to drive and went to church four times a week (Tr. 57).
Standard of Review
The reviewing court must sustain the Commissioner's decision if the findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Piercy v. Bowen, 835 F.2d 190 (8th Cir. 1987). The court may not, however, "rubber stamp" the Commissioner's decision, but must examine both the evidence that supports and detracts from the administrative determination. Piercy, 835 F.2d at 191; Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). It is more than a scintilla of evidence, McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983), but "something less than the weight of the evidence." Cruse, 867 F.2d at 1184. The possibility of drawing inconsistent conclusions from the evidence does not prevent the Commissioner's finding from being supported by substantial evidence. Id. See also Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966).
The claimant has the initial burden of establishing the existence of a disability as defined by 42 U.S.C. § 423(d)(1) and/or § 1382c(a)(3). To meet the statutory definition, "the claimant must show (1) that he has a medically determinable physical or mental impairment which will either last for at least twelve months or result in death, (2) that he is unable to engage in any substantial gainful activity, and (3) that this inability is the result of his impairment." McMillian, 697 F.2d at 220.
If the claimant establishes the impairment is sufficiently severe to prevent return to a former occupation, the burden shifts to the Commissioner to prove the claimant can perform other substantial gainful employment. Buck v. Bowen, 885 F.2d 451, 454 (8th Cir. 1989). The Commissioner need not find a specific job opening for the claimant, but must prove that substantial gainful activity is realistically within the capabilities of the claimant. McMillian, 697 F.2d at 221.
When reviewing the record to determine if there is substantial evidence to support the administrative decision, the court considers the educational background, work history and present age of the claimant; subjective complaints of pain or other impairments; claimant's description of physical activities and capabilities; the medical opinions given by treating and examining physicians; the corroboration by third parties of claimant's impairments; and the testimony of vocational experts when based upon proper hypothetical questions that fairly set forth the claimant's impairments. McMillian, 697 F.2d at 221.
Analysis
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity 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 12 months." 20 C.F.R. § 404.1505(a), 416.905(a). In evaluating claims for disability benefits, the ALJ must conduct a five-step sequential evaluation: (1) is the claimant engaged in substantial gainful activity; (2) does that claimant have severe impairments; (3) does the impairment or combination of impairments meet or equal an impairment listed in Appendix 1; (4) does the impairment or combination of impairments prevent the claimant from doing past relevant work; (5) does the impairment or combination of impairments prevent the claimant from doing other work which exists in significant numbers in the national economy. 20 C.F.R. § 404.1520. Plaintiff has the burden of proving elements (1) through (4). Once he or she has reached the fifth step of the evaluation, the burden shifts to the commissioner to show whether there is work available for plaintiff. Since the analysis is sequential, it can stop at any point at which the ALJ determines either that plaintiff has shown that he or she is disabled, or that the plaintiff has failed to prove any of the necessary elements of the analysis.
In this case, the ALJ determined that plaintiff has not engaged in substantial gainful employment since the alleged onset date of January 1, 1995. Plaintiff had not worked since she quit her job at the curtain factory when she got married in 1992. (Tr. 38.)
Plaintiff is next required to prove that she suffers from a severe impairment. A severe impairment is an impairment or combination of impairments which significantly limits a claimant's physical or mental ability to perform basic work activities without regard to age, education, or work experience. 20 C.F.R. § 404.1520(c), 414.1521(a), 416.920(c), 416.921(a). See Williams v. Sullivan, 960 F.2d 86 (8th Cir. 1992). Basic work activities encompass the abilities and aptitudes necessary to perform most jobs. Included are physical functions such as walking, standing, sitting, lifting, pushing, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, performing, and remembering simple instructions; using judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work situation. 20 C.F.R. § 404.1521(b), 416.921(b). If an impairment or combination of impairments would have no more than a minimal effect on a claimant's ability to work, the sequential evaluation process is terminated at step two. Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989).
Plaintiff has alleged disability due to chronic back pain. The substantial evidence on the record indicates that there is no medical evidence to support the type of pain that would limit plaintiff's ability to work. All the doctors who have examined plaintiff have found no spinal or nerve abnormalities that would account for disabling pain. Plaintiff's back X-rays showed a normal spine with a mild levoscoliosis. Dr. Braco stated that he would not limit plaintiff's activities due her back pain. (Tr. 147.) Dr. Buening specifically found that plaintiff had no physical impairment (Tr. 156-57). Plaintiff's present treating physician, Dr. Glover, noted that there were no objective findings to support plaintiff's reports of low back pain (Tr. 186).
There is also no medical evidence to support any type of severe mental impairment. Plaintiff functions at the average level of intelligence. According to Dr. Wilson, she has a few moderate limitations in the area of concentration and attention, but she can understand and follow both simple and complex directions, and plaintiff has no significant limitations when it comes to social interaction and adaptation. (Tr. 164-65.) Dr. Schulte found that plaintiff showed no evidence of memory problems, thought disorder, or delusion (Tr. 225). Dr. Schulte noted that plaintiff had possible episodic depression, and Dr. Glover felt that plaintiff might have some depression due to pain, but plaintiff responded to antidepressants with no side effects (Tr. 58, 206, 209, 225). There is no evidence that plaintiff's possible episodic depression limits her activities in any way, and no mental health provider has found that plaintiff's mental condition affects any of her activities or abilities.
Even though there is no objective medical evidence of plaintiff's pain, the analysis of whether there is a severe impairment does not stop with objective medical evidence. Plaintiff has made subjective allegations of pain and the ALJ must also take these allegations into account. In Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), the court identified factors to be used in assessing the credibility of a claimant's allegations of disabling conditions. Those factors include objective medical evidence; the plaintiff's work record; the plaintiff's daily activities; duration, frequency, and intensity of pain; dosage, effectiveness, and side effects of medication; precipitating and aggravating factors; and functional restrictions.
As noted above, there is no medical evidence to support plaintiff's subjective allegations of pain. Likewise, there are no medically dictated restrictions placed on plaintiff. In Brown v. Chater, 87 F.3d 963,965 (8th Cir. 1996), the court found the fact that there were no restrictions imposed by treating physicians was significant and supported the ALJ's decision that plaintiff was not disabled.
Plaintiff has a poor work record which does not support a finding of disability. Plaintiff has had eight years of no earnings since 1972, and very low earnings in the remaining years. She quit work in 1992, three years before her alleged disability onset date, not due to disability and not to take care of a child, but because she got married. Courts consider it significant when claimants leave work for other than their medical condition. See Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992). Plaintiff's poor work record does not show a consistent or serious dedication to self-support by the performance of work for pay. The record clearly indicates that plaintiff has spent much of the past two years trying to obtain a certification of disability so that she does not have to look for a job as her case worker informed her. (Tr. 145, 160, 180.) An ALJ may discount a claimant's credibility based on her poor work record. See Ownby v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993); Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984). The Eighth Circuit has held that an ALJ may discount a plaintiff's subjective complaints if, for among other reasons, she appeared motivated to qualify for disability benefits. Gaddis v. Chater, 76 F.3d 893, 895-896 (8th Cir. 1996).
Plaintiff's failure to seek treatment for her alleged disability is not supportive of a finding of disability. Plaintiff alleges disability since January 1, 1995, but there are no records indicating that she saw any doctor until May 16, 1996, almost one and one-half years after she alleges that her condition became disabling. (Tr. 145.) Likewise, there are no records of treatment from any mental health professional. Failure to seek medical assistance for alleged physical and mental impairments contradicts subjective complaints of disabling pain. Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997). Since seeking medical assistance, plaintiff has failed to follow prescribed treatment. She is not doing her home exercise program as prescribed, nor is she complying with the therapeutic medication regimen set forth by her treating physician. (Tr. 185, 208.) Failure to follow a prescribed course of remedial treatment, without good reason, is grounds for denying an application for disability. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995).
Plaintiff's daily activities are inconsistent with her complaints of disabling pain. Plaintiff does a full range of normal everyday activities, including keeping house and raising her three-year-old son. She attends church several times a week and visits friends and relatives. Courts have found such activities inconsistent with allegations of disabling pain. Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); Walker v. Shalala, 993 F.2d 630, 631-32 (8th Cir. 1993).
When plaintiff's subjective complaints of pain are inconsistent with the record as a whole, the ALJ may discount those complaints. See Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989); Benskin v. Bowen, 830 F.2d 878 (8th Cir. 1987). The ALJ properly set forth the inconsistencies on the record upon which he relied when discrediting plaintiff's subjective complaints.
There is no objective evidence on the record that would indicate that plaintiff suffers from severe impairments. Plaintiff's subjective complaints of pain are not credible and do not support a finding of severe impairment. The substantial evidence on the record as a whole supports a finding that plaintiff does not have a severe impairment, as that term is defined in the Social Security Act.
Plaintiff, in her brief, questions the hypothetical questions posed by the ALJ for the vocational expert at the administrative hearing. Since plaintiff has failed to prove that she suffers from a severe impairment, the disability analysis stops at step two and the burden of proof does not pass on to the commissioner. The testimony of the vocational expert is not relevant in plaintiff's case.
Plaintiff has submitted additional medical records with her brief alleging a deterioration of her condition. Additional evidence can form the basis of a remand under 42 U.S.C. § 405(g) if it is material and there is good cause for plaintiff's failure to incorporate that evidence into the record before the commissioner. Sullins v. Shalala, 25 F.3d 601, 604-05 (8th Cir. 1994). Plaintiff's proffered evidence is new because it was nonextant at the time of the original hearing. The evidence was dated August 13, 1997, to April 25, 1998, after the ALJ's decision of June 1997, two and one-half years after the alleged disability onset date of January 1, 1995, and one and one-half years after plaintiff's last eligibility date for Title II benefits. In order to be material, the proffered medical evidence must relate to the claimant's condition on or before the date of the ALJ's decision ( Goad v. Shalala, 7 F.3d 1397, 1398 (8th Cir. 1993)). The additional evidence proffered by plaintiff relates to carpel tunnel syndrome and depression. Although both these conditions were alluded to in the record (Tr. 186, 209), the substantial evidence in the record as a whole indicates that plaintiff was not severely impaired, as that term is defined by the Social Security Act, by any physical condition that she may have alleged prior to the ALJ's decision. See analysis, infra. If plaintiff believes her condition has deteriorated due to these ailments since the ALJ's decision of June 1997, and that she now has severe impairments, the proper course is for her to file a new application for benefits based on new allegations of disability.
THEREFORE, IT IS ORDERED that the decision of the Commissioner is affirmed.
Dated this ___ day of January, 1999, at Jefferson City, Missouri.