Berry v. Callahan

978 F. Supp. 1242, 1997 WL 626900
CourtDistrict Court, S.D. Iowa
DecidedAugust 4, 1997
DocketNo. CIV. 3-96-CV-10191
StatusPublished

This text of 978 F. Supp. 1242 (Berry v. Callahan) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Callahan, 978 F. Supp. 1242, 1997 WL 626900 (S.D. Iowa 1997).

Opinion

ORDER

LONGSTAFF, District Judge.

Plaintiff seeks review of the Commissioner of Health and Human Services’ decision denying him Supplemental Security Income benefits (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), this Court, may review the final decision of the Commissioner.

I. PROCEDURAL HISTORY

Plaintiff Michael Berry, age 36 on the date of the hearing, applied for SSI on September 23, 1993, alleging disability since September 2,1992. He was denied benefits and a reconsideration of that decision. A hearing was held on March 9, 1995 before an administrative law judge (“ALJ”). In a written decision dated August 25, 1995, the ALJ found plaintiff was not under a disability as defined by the Act, and denied his application. On November 13, 1996, after considering additional evidence, the Appeals Council of the Social Security Administration denied plaintiffs request for review. The decision of the ALJ thus stands as the final decision of the Commissioner. This action for judicial review was commenced December 11,1996.

II. FINDINGS OF THE COMMISSIONER

The ALJ found the medical evidence to establish that plaintiff suffers from:

hypertension, obesity, low back pain, status post open reduction internal fixation of the left ankle, degenerative joint disease and related pain in the left ankle, and a medically determinable impairment resulting in complaints of pain in the lower back,

but that he “does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Sub-part P, Regulations No. 4.” Tr. 34.

The ALJ determined that plaintiffs testimony concerning the severity and intensity of his symptoms was not fully credible. Tr. 35. The ALJ further found plaintiff has the residual functional capacity:

to perform the physical exertion and nonexértional requirements of work except for lifting more than 25 to 30 pounds occasionally or 10 to 15 pounds frequently. He cannot stand or walk more than 1 to 2 hours at a time. He cannot do any repetitive stooping, kneeling, crawling, or climbing, and cannot work around heights.

Tr. 35. The ALJ found that plaintiffs impairments prevented him from returning to his past relevant work as an unskilled laborer (Tr. 27), but that a significant number of [1245]*1245other jobs exist in the national economy that plaintiff is able to perform. Tr. 36., These jobs include: short order cook, pantry goods assembler, and cable maker. Tr. 36. The ALJ therefore concluded plaintiff was not disabled under the meaning of the Act. Tr. 36.

III. APPLICABLE LAW AND DISCUSSION

A court must affirm the decision of the Commissioner if substantial evidence on the record as a whole supports the decision. 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough so that a reasonable mind might accept it as adequate to support a conclusion.” Johnson v. Chater, 108 F.3d 942, 943 (8th Cir.1997). A court may not reverse merely because substantial evidence would have supported an opposite decision. Looker v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992). “If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner’s findings, we must affirm the denial of benefits.” Mapes v. Chater, 82 F.3d 259, 260 (8th Cir.1996).

A. Whether ALJ Improperly Discredited Plaintiffs Hearing Testimony

Plaintiff first contends the ALJ improperly discredited his assertions that he could walk only up to 6 blocks, and stand up to 20 minutes. Tr. 32. The Court notes that no physician in the record has prescribed such limitations. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir.1996) (ALJ’s decision denying benefits was supported by lack of significant restrictions imposed by treating physicians). Although J.L. Marsh, M.D., an orthopedist who examined plaintiff in October, 1994, indicated plaintiff “will certainly have difficulties with his ankle arthritis for most likely the rest of his life,” (Tr. 259), Dr. Marsh did not suggest plaintiff is limited to the degree alleged by plaintiff. The same is true regarding plaintiffs back pain. As noted by the ALJ, plaintiffs last visit to a physician due to low back pain was in October, 1993. See Tr. 214. During the disability evaluation performed by D.K. Mokhtar, D.O., in February, 1994, he indicated his back pain amounted to merely a “dull ache,” aggravated only by “prolonged walking, standing, bending, stooping, and lifting.” Tr. 226. (emphasis added). This limitation was appropriately reflected in the ALJ’s residual functional capacity. Tr. 35.

Granted, a lack of objective medical evidence is only one factor for the ALJ to consider. The ALJ must also give full consideration to all information regarding plaintiffs subjective complaints, including “the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984).

The Commissioner may discount subjective complaints of pain when they are inconsistent with the record as a whole. Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993). The ultimate issue is not whether plaintiff experiences pain, but whether his subjective complaints of pain are credible to the extent that the pain is disabling. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993); Pickner v. Sullivan, 985 F.2d 401, 404 (8th Cir.1993).

The Court finds the ALJ appropriately analyzed the criteria set forth in Polaski, and discounted plaintiffs subjective complaints. As noted by the ALJ, plaintiff testified during the hearing he is able to get his roommate’s children off to school, dishes and perform other light housework, grocery shop, baby-sit and get the children afternoon snacks, visit friends, help his roommate with homework, and go fishing. Tr. 74-76. There is no evidence, plaintiff experiences serious

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
978 F. Supp. 1242, 1997 WL 626900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-callahan-iasd-1997.