Woolf v. Shalala, 92-3757

• Citation: 3 F.3d 1210
• Decision Date: 07 September 1993
• Docket Number: No. 92-3757,92-3757
• Parties: , Unempl.Ins.Rep. CCH 17492A Glenna R. WOOLF, Appellant, v. Donna E. SHALALA, * Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1210

3 F.3d 1210

42 Soc.Sec.Rep.Ser. 207, Unempl.Ins.Rep. CCH 17492A

Glenna R. WOOLF, Appellant, v. Donna E. SHALALA, ^* Secretary of Health and Human Services, Appellee No. 92-3757.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1993.

Decided Sept. 7, 1993.

Peter W. Herzog, St. Louis, MO, argued (Mark S. Deiermann and Peter W. Herzog III, on the brief) for appellant.

Eric Tyrone Tolen, St. Louis, MO, argued (Stephen B. Higgins and Eric T. Tolen, on the brief), for appellee.

Before WOLLMAN and LOKEN, Circuit Judges, and BOGUE, ^** Senior District Judge.

WOLLMAN, Circuit Judge.

Glenna R. Woolf appeals from the district court's ¹ order affirming the decision of the Secretary of Health and Human Services ("Secretary") to deny Woolf disability benefits. We affirm.

I.

Woolf filed her present applications for Social Security disability benefits and for Supplemental Security Income ("SSI") benefits on November 10, 1987, and January 13, 1988, respectively. She alleged that she had been disabled since 1981 due to a strain in her spine that she suffered in several automobile accidents, an incident at work in 1982 and a fall from her neighbor's porch in 1984. ² Woolf stated that she had past relevant work experience as a service station attendant, a security dispatcher, a waitress, and a factory worker, but that she had not been employed since 1982.

The Social Security Administration denied Woolf's applications initially and on reconsideration. Woolf then sought a hearing before an administrative law judge ("ALJ"). Woolf, who was 47 years old at the time of the November 30, 1988, hearing, testified that she has continuing pain in her back, for which she has been prescribed pain medication. She is able to live by herself, to drive her car to get groceries, and to do housework with the help of a neighbor. She also stated that occasionally she goes out for social activities but that most often her friends visit her at her home. She testified that she has difficulty lifting bags of groceries and consequently carries her groceries into the house a few items at a time.

The ALJ determined that Woolf was not disabled under the provisions of the Social Security Act and denied her applications for benefits. The ALJ found that although Woolf did have a severe degenerative disease of the lumbar spine, she was currently able to perform her past work as a service station attendant/cashier or as a dispatcher. The Appeals Council denied Woolf's request for further review on May 18, 1989.

Woolf sought judicial review of the Secretary's decision in the district court. On July 5, 1990, Woolf filed a motion seeking to have the case remanded to the Secretary for consideration of additional medical evidence, specifically a letter by her treating physician describing the results of tests performed in May 1989 and October 1989. The district court referred the motion to a magistrate judge, ³ who recommended that the remand motion be denied because the additional evidence was not material and Woolf had not shown good cause for failing to obtain and present this evidence prior to the administrative hearing. The district court adopted the magistrate judge's report and recommendation and denied the motion. The court then directed the parties to file summary judgment motions. Adopting the magistrate judge's report and recommendation on the summary judgment motions, the district court granted the Secretary's motion.

On appeal, Woolf raises two principal issues. First, she contends that the Secretary's decision is not supported by substantial evidence on the record as a whole because the ALJ improperly discounted her subjective complaints of pain and erroneously found that she retained the ability to perform her past work as a service station attendant or a dispatcher. Second, Woolf argues that the district court erred in denying her motion to remand the case to the Secretary for consideration of additional medical evidence.

II.

Under the Social Security disability and SSI programs, ⁴ the Secretary shall find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. Sec. 1382c(a)(3)(A). The impairments suffered must be "of such severity that [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 the national economy." Id. Sec. 1382c(a)(3)(B). Any such impairment must last for a continuous period of at least twelve months or be expected to result in death. Id. Sec. 1382c(a)(3)(A); see also 20 C.F.R. Secs. 404.1509, 416.909. To implement the statute, the Secretary has promulgated regulations establishing a sequential five-step procedure for determining whether the claimant is disabled. See 20 C.F.R. Secs. 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992) (describing the process). The claimant bears the initial burden of proving a disability. Locher, 968 F.2d at 727.

When reviewing a denial of benefits, we will uphold the Secretary's final decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. Sec. 405(g); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir.1991). Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary's conclusion. Whitehouse, 949 F.2d at 1006 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). In assessing the substantiality of the evidence, we must consider evidence that detracts from the Secretary's decision as well as evidence that supports it. Locher, 968 F.2d at 727 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). We may not, however, reverse the Secretary's decision "merely because substantial evidence would have supported an opposite decision." Id. (quoting Baker, 730 F.2d at 1150).

"As is true in many disability cases, there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is." Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991). Having reviewed the administrative record, we find that there is substantial evidence to support the ALJ's decision that Woolf's back problems are not so severe as to be disabling and that Woolf could return to her past work as a service station attendant or a dispatcher.

There is little or no objective medical evidence in the record that would support a finding that Woolf's back problems are disabling. The medical records do show that Woolf suffers from some degenerative disc disease, especially in the lumbar spine. This diagnosis has not changed over the course of the ten years of medical records that are in the administrative record. Additionally, a CT scan performed in August 1982 disclosed a mild posterior bulging at the L4-L5 space in Woolf's lumbar spine. Some subsequent tests have also shown this bulging, while others have not. At any rate, no test result has demonstrated that this condition has increased in severity beyond a mild bulging. Also, the physicians' reports are consistent in stating that Woolf has no neurological or neuromuscular deficits.

The report of Dr. Scott Sale, who examined Woolf on July 31, 1987, provides further support for the ALJ's finding of no disability. Dr. Sale noted that Woolf's gait was normal and that she was able to get on and off the examining table without difficulty, but that she appeared to have some tenderness in the cervical and dorsal lumbar spine areas. In all, Dr. Sale concluded that his physical examination of Woolf and review of her x-rays showed no neurological impairment and that Woolf's pain was "out of proportion to muscle spasm secondary to motor vehicle accident."

Finally, Woolf's testimony at the administrative hearing provides additional support for the ALJ's decision. Although Woolf testified that she has considerable pain, she acknowledged that she is able to live by herself, to drive her car, to shop for groceries, and to do the housework with some help from a neighbor. Furthermore, Woolf acknowledged that physical therapy has relieved her condition somewhat.

It is true that Woolf's testimony also contained evidence of limitations on her daily activities. For example, Woolf stated that she does not sleep well, that a neighbor takes care of mowing her lawn, that she carries her groceries into her house in small parcels, and that it would hurt her to walk more than a single block. Although these pieces of evidence, if accepted as credible, might have proved sufficient to support a finding of disability, we are not allowed to substitute our opinion for that of the ALJ, who enjoys a closer position to the testimony in support of an application. Locher v. Sullivan, 968 F.2d at 727 (court may not reverse merely because substantial evidence would have supported an opposite decision).

Woolf contends, however, that two doctors have opined that she is disabled. We find that the ALJ properly discredited their opinions of disability. In a letter dated December 14, 1987, Dr. William Poggemeier stated that Woolf is totally disabled because of an injury to her coccyx. Dr. Poggemeier, however, admitted that he had performed no tests to support his conclusion. Consequently, the ALJ properly discredited his testimony. See Vasquez v. Schweiker, 701 F.2d 733, 736 (8th Cir.1983) ("The credibility of a medical opinion is particularly suspect when it is based on incomplete evidence.").

We find that the ALJ also was justified in discrediting the opinion of disability by Dr. Emil DiFilippo, notwithstanding the fact that Dr. DiFilippo has been Woolf's primary treating physician for her back problems since 1981. Throughout his treatment of Woolf, Dr. DiFilippo has consistently diagnosed Woolf's condition as an acute cervical, thoracic lumbar strain and has...