Lawson v. Apfel

• Decision Date: 29 September 1998
• Docket Number: No. 97-4250-C-W-1.,97-4250-C-W-1.
• Citation: 46 F.Supp.2d 941
• Parties: Paulette LAWSON, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Missouri

46 F.Supp.2d 941

Paulette LAWSON, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 97-4250-C-W-1.

United States District Court, W.D. Missouri, Central Division.

September 29, 1998.

Dewey L. Crepeau, Columbia, MO, for plaintiff.

Jerry L. Short, Ass't. U.S. Attorney, Kansas City, MO, for defendant.

ORDER

WHIPPLE, District Judge.

Pending before the Court is Claimant Paulette Lawson's motion for summary judgment and the Defendant Commissioner of Social Security's brief in support of the administrative decision denying Lawson's application for a period of disability and disability insurance benefits under Title II of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g). Lawson complains that the Commissioner's administrative law judge (ALJ): (1) erred in relying on the Vocational Expert's (VE) testimony because it contradicted the Dictionary of Occupational Titles (DOT) without an adequate explanation for the contradiction; and (2) erred in concluding that the Claimant did not have a disability as defined by 20 CFR pt. 404, subpt. P, app. 1, § 12.05(C).

I. FACTS

The complete facts and arguments are presented in the parties' briefs, and, consequently, will be duplicated here only to the extent necessary. At the time of the hearing, Lawson was a 33 year-old female. Lawson has an eleventh-grade education in special education, but she cannot read a newspaper and her ability to add and subtract is not good. She has past work experience as a maid and she formerly worked at a shoe factory, but the ALJ concluded that she had no past relevant work experience and that she has not engaged in substantial gainful activity at any time pertinent. Lawson alleges disability due to back pain and other aliments. On July 26, 1996, the ALJ issued a decision denying benefits to Lawson finding that she is not entitled to a period of disability or disability insurance benefits under §§ 216(i) and 223, respectively, of the Social Security Act.

II. STANDARD OF REVIEW

The Court's review is limited to determining if the Commissioner applied the correct standard of law and whether the Commissioner's findings of fact are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); see also Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir.1989). The review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision. Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991). The Court also takes into account whatever in the record fairly detracts from its weight. Id. Resolution of factual conflicts, however, is not for the Court to decide. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir.1987).

In reviewing whether the ALJ properly applied the law and appropriately assessed the claimant's application, the Court reviews whether the ALJ followed the Commissioner's implementing regulations, which set out a five-step, burden-shifting process for determining whether the claimant has a "disability" within the meaning of the Social Security Act. See 42 U.S.C. §§ 423(d)(1)(a) (defining "disability" for purposes of social security) and 1382(a)(3)(A) (defining "disability" for purposes of SSI). To form the basis for "disability," an impairment must result from anatomical, physiological, or psychological abnormalities which can be demonstrated by medically accepted clinical and laboratory techniques. Lannie v. Shalala, 51 F.3d 160, 163 (8th Cir.1995).

In steps one through four of the process, a claimant has the burden of proof to demonstrate that his or her impairment rises to the level of a disability. See Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir.1975); Lannie, 51 F.3d at 163. The first step in the process is to determine whether the individual is engaging in "substantial gainful activity." Lannie, 51 F.3d at 163. If the individual is not engaging in substantial gainful activity, then the second step is to ascertain whether the individual's impairment (or combination of impairments) is severe. Id. If the impairment is not severe, the claim is denied. Where the impairment is severe, it is compared to the Listing of Impairments (the "Listing"),¹ which are considered as a matter of law to be so severe as to preclude substantial gainful activity. Id. If the severity of the impairment meets or equals that of a listed impairment, the claim is allowed. Id. When a severe impairment does not meet or equal the Listings, however, the Commissioner must determine the individual's "residual functional capacity" (RFC). Id. If, given the individual's RFC, he or she can meet the demands of past work, the claim is denied. Id. Until this fifth step, the burden is on the individual to prove that he or she is disabled. However, if the individual is not able to perform his or her past work, the burden shifts to the Commissioner to prove that there are jobs in the national economy that the individual can perform. Id.; see also 20 C.F.R. § 404.1566 (defining how the Commissioner determines whether jobs exist in the national economy in substantial numbers). In a case of solely exertional impairments,² the Commissioner may consult the Medical-Vocational Guidelines³ to meet his or her burden of proving the availability of jobs in the national economy that the claimant can perform. Hall v. Chater, 62 F.3d 220, 224 (8th Cir.1995). If, however, the claimant also has a significant nonexertional impairment,⁴ the Commissioner must use vocational expert testimony to meet the burden of showing the existence of jobs in the national economy that the claimant is capable of performing. Foreman, 122 F.3d at 25.⁵ If such jobs do not exist in significant numbers, the claim is allowed. Hall, 62 F.3d at 224.

When the ALJ assesses a claimant's subjective complaints relating to non-exertional impairments, such as pain, the claimant must prove, on the record as a whole, that the disabling impairment results from a medically determinable physical or mental impairment. However, direct medical evidence of the cause and effect relationship between the impairment and the degree of the claimant's subjective complaints need not be produced. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Accordingly, when making a disability determination, the adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them. Id. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints. Id. Thus, the adjudicator must consider the claimant's prior work record and observations by third parties and physicians relating to such matters as: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the subjective infirmity; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of medication; and (5) functional restrictions. Id.

In evaluating the Polaski factors, the Eighth Circuit has advised that the mere fact that working may cause pain or discomfort does not mandate a finding of disability. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir.1996). An ALJ may discount a claimant's subjective complaints of pain, however, only if there are inconsistencies in the record as a whole. Id. Relevant here are the claimant's daily activities, demeanor, whether he or she has sought treatment, and the objective medical evidence. Id. Furthermore, where proof of a disability depends substantially upon subjective evidence, such as pain, a credibility determination is a critical factor in the Commissioner's decision. Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir.1991) (distinguishing Smith v. Heckler, 735 F.2d 312 (8th Cir.1984)). Consequently, "the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding." Id. (citations omitted). Failure to make credibility determinations in such cases is reversible error. See id.

III. ANALYSIS

The Court has reviewed the parties' briefs, the ALJ's decision, the hearing transcripts, and the additional medical and documentary evidence. As a result of that searching review, the Court agrees with the decision of the ALJ. Below, the Court specifically addresses each of the Claimant's arguments.

A. Reliance on the Testimony of a Vocational Expert When it Contradicts the Dictionary of Occupational Titles

Lawson argues that the ALJ erred in relying on the VE's testimony that jobs existed in the national economy which she could perform. She contends that the VE's testimony conflicted with the DOT, and that the VE did not rebut the DOT's classifications. Therefore, Lawson asserts that the VE's testimony does not constitute substantial evidence upon which the ALJ could base her decision.

At Lawson's hearing, the VE responded to the ALJ's hypothetical by testifying that Lawson would be capable of performing such jobs as photo finisher, hand packer, and laundry folder. (R. at 51-52.) The VE did not refer to the DOT in reaching his decision, nor did the VE refer to the corresponding DOT job titles when he identified the jobs which Lawson could perform. The ALJ ultimately concluded that Lawson was capable of performing these jobs. (R. at 22.) According to the DOT all of these jobs, or their equivalent listing in the DOT, require a Level 1 Language Development. The DOT indicates that Level 1 Language Development requires a reading rate of 95-120 words a minute and the ability to recognize 2,500 two and three syllable words along with the ability to print simple sentences. The ALJ, however, concluded that Lawson was functionally illiterate. (R. at 21.) Lawson asserts that a person who is functionally illiterate does not have the job skills necessary to perform jobs which require a Level 1 Language Development, and that, therefore, the VE's testimony conflicts with the DOT.

The Circuits are split as...