Salih v. Astrue
MEMORANDUM AND ORDER regarding Complaint. The findings and conclusions of the ALJ are affirmed. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FADIL SALIM SALIH,
MEMORANDUM AND ORDER
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration;
Plaintiff Fadil Salim Salih (“Salih”), seeks review of a decision by the defendant,
Michael J. Astrue, the Commissioner of the Social Security Administration
(“Commissioner”), denying his application for disability benefits and payment of
disability insurance benefits under Title II and Title XVI of the Social Security Act. (TR
126-29, 133-38). After carefully reviewing the record, the Commissioner’s decision will
I. PROCEDURAL BACKGROUND
Salih applied for social security disability benefits on July 10, 2008, (TR 126138), claiming low back injuries rendered him disabled and unable to work since
December 12, 2007. Social Security Transcript (“TR”) at 38,. His application for
disability benefits was denied initially on September 4, 2008, (TR 75-78), and upon
reconsideration on October 15, 2008. (TR 80-83).
Salih filed a hearing request on December 9, 2008. (TR 11-12, 86-87). A hearing
was held before an Administrative Law Judge (“ALJ”) on April 6, 2010. (TR 33-68).
Salih was represented by counsel at the hearing. (TR 11-14, 84). Testimony was
received from Salih, and from a vocational expert (“VE”) who appeared at the ALJ’s
request. (TR 96-97, 113). In addition to the back problems identified in the plaintiff’s
application, the ALJ heard and considered testimony regarding plaintiff's complaints of
stomach and hip pain. (TR 22-40, 300-407).
The ALJ’s adverse decision was issued on July 13, 2010, (TR 16-32), and Salih’s
request for reconsideration by the Appeals Council was denied on October 5, 2011. (TR
1-3). Salih’s pending complaint for judicial review and reversal of the Commissioner’s
decision was timely filed on November 30, 2011. Filing No. 1.
II. THE ALJ’S DECISION.
The ALJ evaluated Salih's’ claims through all five steps of the sequential analysis
prescribed by 20 C.F.R. §§ 404.1520 and 416.920. TR 18-33. As reflected in his
decision, the ALJ made the following findings:
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2012.
The claimant has not engaged in substantial gainful activity since
December 12, 2007, the alleged onset date.
The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine; and chronic right lower lumbar pain; and
chronic right hip pain.
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that
the claimant, when provided the opportunity of normal breaks in the midmorning, lunch time and mid-afternoon, has the residual functional capacity
to: lift twenty pounds occasionally and ten pounds frequently: stand for six
hours in an eight hour workday: sit for six hours of an eight hour workday:
and walk on a frequent basis. Salih is limited to performing only occasional
activities of bending, stooping or kneeling. He must not be exposed to
concentrated cold temperature extremes or wetness. He has no limitations
with regards to the use of his extremities, performing overhead reaching or
the ability to climb stairs.
The claimant is capable of performing past relevant work as a production
assembler (light, unskilled, SVP 2, DOT 706.687-010) and as a cashier II
(light, unskilled, SVP 2, DOT 211.462-010). Work at these jobs does not
require the performance of work-related activities precluded by the
claimant's residual functional capacity.
The claimant has not been under a disability, as defined in the Social
Security Act, from December 12, 2007 through the date of the ALJ’s
decision (July 13, 2010).
III ISSUES RAISED FOR JUDICIAL REVIEW.
Salih claims the ALJ's determination must be reversed because:
Salih’s actual job history was not correctly described and analyzed, and the
VE’s opinions, which relied on this incorrect identification of Salih’s past
relevant work, cannot provide a basis for denying Salih's claim.
The jobs named by the VE as providing a basis for denying Salih's claim lie
beyond the RFC as found by the ALJ, or were identified in response to a
legally defective hypothetical question posed by the ALJ;
The ALJ's credibility finding was not supported by substantial evidence and
rests in part upon the use of an incorrect legal standard;
The vocational testimony responded to a hypothetical question which did
not include all documented impairments; and
The RFC determination is not supported by substantial evidence.
(Filing No. 18, at CM/ECF pp. 2-3).
IV. THE RECORD AND PROCEEDINGS BEFORE THE ALJ.
The plaintiff is an adult male who came to the United States from Iraq in 1992.
Salih attended high school and two years of technical school in Iraq before entering the
United States. (TR 39, 70, 173). He can speak, read, and write English, and can
correctly exchange American money when conducting financial transactions. (TR 39, 70,
Between 1992 and his injury in 2007, the plaintiff worked as a cashier, a
production assembler, a general laborer, a hand packager, and an industrial truck
operator. (TR 39, 144-48, 168-185, 221, 236).
On December 12, 2007, Salih injured his low back and right hip when he stumbled
and fell while working as a stocker for his employer, Tecumseh Poultry, LLC. (TR 15253). Following the accident, he was seen and treated by Dr. Stephen J Haudrich, at
Concentra Medical Centers. During the examination, Salih was able to flex his lumbar
spine to 90 degrees with only mild pain, extend to 20 degrees, and had a negative
bilateral leg raise, a normal gait, symmetric reflexes, and no palpable spasm, sciatic notch
tenderness at either buttock, or tenderness at the sacroiliac (SI) joints. (TR 250). Salih
was diagnosed as having a lumbar sprain. He was offered a prescription for ibuprofen,
but refused because it was "too strong." Salih was released to return to work the next day
with the following restrictions: No repetitive lifting of over 20 pounds, and no pushing
and/or pulling with over 40 pounds of force. (TR 242, 249-50).
Salih began physical therapy, (TR 252), with follow up doctor's appointments
scheduled for December 17 and December 26, 2007. (TR 242-43). After two physical
therapy treatments, Salih reported that his back was better, but still sore--possibly from
sleeping on the floor to alleviate his back pain. He was ready to try sleeping in a bed
again. (TR 255). Salih was discharged from physical therapy on December 17, 2007
with instructions for home exercises. (TR 256-58). Salih stopped working on December
19, 2007, reportedly due to pain. (TR 267, 281).
At his doctor’s appointment on December 26, 2007, Salih complained that his
symptoms were getting worse. (TR 259). Dr. Haudrich referred Salih back to physical
therapy, (TR 261), and released Salih to return to work with the following additional
restrictions: No prolonged standing and/or walking longer than one hour per shift and no
bending. (TR 244). His doctor’s appointment was scheduled for December 31, 2007.
When Salih attended physical therapy on December 31, 2007, he was “upset with
his employer for what he views as not letting him use his sick days,” and stated he would
“refuse any work for January,” and would “wait and see about returning to work in
Salih’s effort at the physical therapy session that day was
“[q]uestionable,” with his subjective report of symptoms “inconsistent with objective
findings." (TR 266).
Dr. Haudrich's medical examination, performed on December 31, 2007, revealed:
Negative bilateral leg raise. Spasm of the paraspinous muscles only on the
right today, No tenderness at the sacroiliac joints. No sciatic notch
tenderness at either buttock. Negative Waddell tenderness. Negative
(TR 267). The x-rays taken that day revealed early degenerative disc disease at L2-3, but
no evidence of a compression fracture. (TR 246). The plaintiff was allowed to return to
work with the following restrictions: No repetitive lifting over 20 pounds, no prolonged
standing or walking longer than one hour per shift, no pushing or pulling over 40 pounds,
and no bending. (TR 247).
After conferring with the physical therapist, Dr. Haudrich discontinued the
prescribed physical therapy, explaining: "I see no need to prolong formal therapy at this
time, as it is not helping" (TR 267). Salih was referred to a specialist for further
treatment. (TR 247).
Dr. Benjamin Gelber, a neurosurgeon, saw the plaintiff on January 8, 2008. After
performing an examination, Dr. Gelber concluded "[t]his is probably a muscle and
ligamentous injury. I do not see anything to suggest lumbar radiculopathy." (TR 281).
Dr. Gelber prescribed Flexeril and Naprosyn and ordered a Magnetic Resonance Imaging
(MRI). The MRI scan of the lumbar spine, conducted on January 9, 2008, showed some
minor degenerative changes, but no sign of disc protrusion or extrusion, and no nerve
root problems. (TR 278, 284).
Salih was again seen by Dr. Haudrich on January 30, 2008. Salih stated his pain
was "getting worse to the point he cried with pain 2 days ago,". . "could not walk that day
or sleep," and the "pain feels 'hot' at times," radiating down the right leg, particularly at
his right buttock," with "some upper back muscle pain between his shoulder blades." (TR
269). He claimed the symptoms had been ongoing for the last six day. But his January
30, 2008 examination revealed:
Negative bilateral leg raise. Normal FROM. Normal gait. Reflexes
symmetric. No sciatic notch tenderness at either buttock. No tenderness at
the sacroiliac joints. No point tenderness, No spinous tenderness. No
(TR 269). Dr. Haudrich concluded:
Despite thorough evaluation(s) and imaging, we have not been able to
identify any acute anatomical explanation for his symptoms. I explained
that he has had imaging of all areas of concern to him, both with plain films
and MRI. He has failed physical therapy. He is less able/willing to walk
on a treadmill than while walking normally down our halls. We can find no
objective evidence of a significant Injury on exam. Any muscular strain
should have resolved by 6 weeks out from the injury, even without
intervention. I can identify nothing to prevent him from working regularly
relative to his injury of 12/12/2007. For the chronic degenerative changes
seen on his MRI, which pre-exist his injury and are not work-related, he is
to see a personal physician of his choice. He is at MMI today.
(TR 270). Salih was released by Dr. Haudrich to return to his regular duties, with no
restrictions, on January 30, 2008. (TR 248).
On March 14, 2008, Dr. Rajesh Kumar, an orthopedic doctor, performed an
independent medical examination of the plaintiff.
Salih was able to
communicate with Dr. Kumar in English. (TR 290). Dr. Kumar noted that Salih "walks
with a stiff gait, trying to hold on to his right hip." (TR 290). The spinal examination
revealed a muscle spasm in the right lumbar muscles, with tenderness in the lumbosacral
areas radiating into the right side. Salih complained of some pain in the upper lumbar
area. (TR 290). Dr. Kumar diagnosed: "Back sprain, probable injury to L4-5 and L5-S1
disks and the ligaments surrounding that area," and noted that Mr. Salih "has difficulty
standing and walking" (Tr. 291). Dr. Kumar concluded:
At present [Salih] cannot do any pulling, pushing or lifting. He is limited to
standing or sitting in one place for half an hour." In the future, he will
require medical treatment as well as physiotherapy. If his symptoms get
worse, one may have to consider surgical treatment as well.
A second independent medical examination, with a medical records review, was
performed by Dr. Michael O'Neil, an orthopedic doctor, on June 2, 2008. Dr. O'Neil
concluded Salih's pain was focused on the right SI joint of his hip, Salih had not yet
reached maximum medical improvement, and he could benefit from steroid injections
and a right SI joint stabilizing program. Dr. O'Neil did not place any restrictions on the
plaintiff's ability to work. (TR 297-98).
Dr. Kumar saw Salih again on August 27, 2008, and concluded the plaintiff had
reached maximum medical improvement, and due to a back sprain and probable lower
lumbar disc injury, had a limited ability to stand, walk, pull, push, or lift. (TR 302).
On September 2, 2008, Salih was seen by Dr. Geoffrey McCullen for a second
Dr. McCullen diagnosed right-sided low back pain of uncertain
etiology. Like Dr. Gelber, Dr. McCullen did not believe surgery was indicated He
referred Salih to Dr. David Diamant for pain treatment. (TR 325).
The following day, Dr. Jerry Reed performed a Physical Residual Functional
Capacity Assessment, (RFC). Dr. Reed concluded the plaintiff had no visual, auditory, or
limitations, no limitations on the use of his hands, and no environmental
limitations other than avoiding concentrated exposure to vibration and extreme cold. He
further found that Salih was able to:
occasionally lift and/or carry 20 pounds, and frequently lift 10 pounds;
stand, walk, or sit six hours in an eight-hour day;
frequently balance or kneel; and
frequently climb steps, and occasionally use ladders or scaffolds, stoop,
crouch, and crawl;
(TR 305-09). Dr. Reed considered the plaintiff's complaints only "partially credible,"
He was able to stand on his toes and on his heels. He was able to lie down
and sit up from a lying position. Peripheral circulations were normal.
Previous x rays referenced showing normal alignment of the spine. MRI
was also referenced showing no spinal stenosis, no disc protrusion and only
disc bulging at L4, 5, S1 and a question of an annular tear. Impression of a
back sprain and probable disc injury at L4, 5 and S1. Claimant's conditions
are severe but will not M/E any listing. He appears capable of performing
work activity as outlined in this RFC.
On September 11, 2008, Dr. Diamant examined the plaintiff. Salih appeared to be
"in no acute distress with a normal gait pattern, [n]o lumbar listing, scoliosis, guarding, or
spasm." The examination showed:
Forward flexion two-thirds the way down, he does not complain of pain he
just says he cannot bend anymore without bending the knees, Extension
beyond neutral is full range without pain, Non-tender along the SI joint
While seated, straight leg raise is negative bilaterally. Strength is normal in
knee extension, ankle dorsiflexion, big toe extension, and ankle eversion
bilaterally. Sensation is normal to light touch in the L3 through S1
dermatome bilaterally. Reflexes are normal at the patella and Achilles
tendons bilaterally. 2+ dorsalis pedis pulse bilaterally.
While recumbent, straight leg raise is negative bilaterally. Moderately tight
hamstrings on each side. Stretching the right hamstring does cause some
degree of right hip/back pain, relieved when I relieve the hamstring stretch.
Patricks test is negative as is stretching the hip lateral rotators. While
prone, he is tender in the right lower lumbar paraspinals, non-tender on the
(TR 321-22). On September 19, 2008, Dr. Diamant performed a Right L5, S1 facet nerve
block for treatment of Salih's complaints of right low lumbar pain. (TR 320). Salih
reported no pain relief from the nerve block. (TR 346). Dr. Diamant referred the
plaintiff to chiropractic care, (TR 346), but also concluded Salih remained able to "work
at a sedentary to light duty capacity if such were available." (TR 347).
A second Physical RFC was performed by Dr. Glen Knosp on October 15, 2008.
Dr. Knosp affirmed the previous RFC opinions of Dr. Reed. (TR 343).
Salih began receiving chiropractic care from Dr. David W. Lauer on October 27,
2008. (TR 365). As of November 3, 2008, the plaintiff continued to complain of low
back pain, rated at between 3 and 4 on a 0-10 scale. (TR 368). The plaintiff stated that
standing primarily causes hip pain, with some secondary back pain, and he can stand for
only a couple of hours at a time and then has to lie down.
At his chiropractic
appointment on November 7, 2008, the plaintiff stated his low back pain had improved,
but his hip pain remained a problem--especially at night. (TR 370). By November 12,
2008, Dr. Lauer believed Salih was not responding appreciably to chiropractic treatment.
Salih saw Dr. Thomas L. Green, a chiropractor, who examined the plaintiff and his
medical records. Dr. Green concluded Salin had a chronic lumbar strain with pain,
muscle guarding, and spasm, and permanent work restrictions were needed. (TR 412).
He recommended a Functional Capacity Evaluation (FCE) to determine Salih’s specific
work limitations. (TR 412).
An FCE was performed on March 23, 2009. (TR 400). "Numerous subjective and
objective inconsistencies were seen throughout the assessment," and the FCE results were
considered invalid. (TR 400). Due to the invalidity of the FCE findings, the examiner
stated the data could not be relied upon for vocational planning. (TR 404).
On March 27, 2009, Dr. Green reported Salih remains able to perform light to
medium work, and remains able to:
Lift 20 pounds occasionally (defined as up to 33% of the workday), and 10
pounds frequently (defined as up to 66% of the workday);
Sit constantly (defined as up to 100% of the workday), with breaks every
Stand and walk frequently, with breaks every two hours;
Reach over his shoulders constantly; and
Bend, stoop, squat, kneel, and crawl occasionally.
On June 26, 2009, Salih was sought medical treatment for low back and hip pain
at the Center for People in Need. (TR 420). The Center requested the plaintiff's past
medical records for review, and prescribed Meloxicam. (TR 422). The plaintiff did not
return to the Center until March 1, 2010. At that time, he complained that during the
course of his treatment, he should have seen an orthopedic doctor instead of a spine
He further complained about receiving only $14,000 for his worker's
compensation claim rather than the $100,000 he deserved.
The Center prescribed
Meloxicam, Ibuprofen, and Zantac for the plaintiff’s symptoms of pain and stomach
discomfort. (TR 422-23).
Although Salih had previously stated he was unable to afford any further attempts
at physical therapy for alleviation of his symptoms, (TR 215), even after receiving his
worker's compensation settlement in February of 2010, he did not re-attempt physical
therapy or seek out any medical treatment except for the treatment received at the Center
one month before his hearing before the ALJ. (TR 61).
At the April 6, 2010 hearing before the ALJ, the plaintiff claimed that needs to lay
down every one or two hours due to pain in his hip and low back. (TR 40, 169).
described his pain as a stabbing pain; rated a 2 out of 10 during the day, and 4 out of 10 at
night. (TR 51). He explained that his pain subsides if he lays down with his hips flexed,
(TR 213); and it dissipates to a 1 out of 10 while he takes a hot shower, but it worsens
when the weather is cold and when he bends over at the waist. (TR 52-53, 214). The
plaintiff testified that he needs to sleep on his side at night, (TR 52), and the pain keeps
him awake which, in turn, interferes with his ability to focus during the day. (TR 41).
The plaintiff testified that he received a prescription ibuprofen for pain and a medication
to help him sleep, (TR 41-42, 214, 222), which reportedly upset his stomach, (TR 215),
and he takes a medication for the stomach symptoms. (TR 42).
The plaintiff claims he can walk for only 20 minutes, and stand for only one or
two hours before he needs to sit or lay down; sit for only one or two hours at a time, for a
total of no more than four hours in an eight-hour day; stand for no more than four hours
and walk for no more than one or two hours in an eight-hour day. He claims he can lift
no more than 10 pounds with one hand, or 20 pounds with both hands, and cannot bend
or twist at the waist without exacerbating his pain. (TR 53-55; 216-17). Salih claims he
cannot do laundry, but states he is able to perform household chores, drive and attend
church, cook, visits friend, shop for groceries, and work in the garden. He walks for 1015 minutes every day, and reads up to four hours a day, usually reading religious books
or the Arabic/English dictionary. (Tr. 55-58, 187-88, 199, 216-19).
During the hearing, the plaintiff was asked to review exhibit 14E (TR 176-85), a
document listing Salih’s past jobs and written by Salih himself, and then comment
whether he remains able to perform the jobs he had done in the past. (TR 43-50). Salih
confirmed that the job descriptions listed in exhibit 14E were accurate. The plaintiff
testified that he cannot perform his past relevant work as:
A cashier, because he needs to lie down every two hours, and must be able
to perform some lifting and bending (to fill the refrigerator or to clean and
check propane tanks), (TR 43-44, 236);
A production assembler, because he cannot lift and carry boxes, or bend,
stoop, or crouch, (TR 45-47);
A general laborer, because he has difficulty reaching, walking, bending,
and climbing, and he cannot lift more than 20 pounds, climb and stoop, and
has balance issues, (TR 47-48);
A hand packager, because he cannot continuously reach and cannot lift or
pull up to 50 pounds, (TR 49); or
An industrial truck operator, because he cannot reach, climb, crouch, or
handle, and he cannot lift more than 20 pounds. (TR 50)
After listening to the plaintiff's testimony and affording the plaintiff a full
opportunity to be heard, the ALJ posed the following hypothetical question to the VE:
Assuming someone of the plaintiff's age, education, and past work history should avoid
exposure to constant cold and wetness, but is able to lift up to 20 pounds on occasion and
10 pounds on a frequent basis; can sit or stand for six hours in an eight-hour day; has
unlimited use of his extremities; and can occasionally bend, stoop, and kneel; can walk
on a frequent basis, and can reach above the head and climb stairs with no difficulties,
could that person perform the plaintiff's past relevant work in a job with normal midmorning and mid-afternoon breaks? (TR 64-65). The VE testified that Salih could still
perform his past relevant work as a cashier II and as a production assembler, but was no
longer able to be a general laborer, a hand packager (at the medium exertional level), or
an industrial truck operator. The VE further testified that Salih remains able to perform
other types of jobs in the regional and national economy, including the job of a hand
packager at the light exertional level, with 14,448 such jobs in the Iowa, Nebraska,
Missouri, and Kansas region, (TR 65-66); or a housekeeping cleaner, with 17,783 such
jobs in the four-state region and 376,362 jobs nationally.
The VE further testifies that no jobs are available in the national competitive labor
market if the plaintiff needs to lay down after lunch for two hours, (TR 66); or if, as
plaintiff states, he needs to lay down every two hours, can lift no more that 10 pounds
with one hand and 20 pounds with both hands; has difficulty bending, and twisting, and
can sit or stand for only one to two hours, and walk for only 20 minutes. (TR 66-67).
Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial
review of a “final decision” of the Commissioner under Title II, which in this case is the
ALJ’s decision. A denial of benefits by the Commissioner is reviewed to determine
whether the denial is supported by substantial evidence on the record as a whole. Hogan
v. Apfel, 239 F.3d 958, 960 (8th Cir. 2001).
If substantial evidence on the record as a whole supports the
Commissioner’s decision, it must be affirmed. Choate v. Barnhart, 457
F.3d 865, 869 (8th Cir. 2006). “‘Substantial evidence is relevant evidence
that a reasonable mind would accept as adequate to support the
Commissioner’s conclusion.’” Smith v. Barnhart, 435 F.3d 926, 930 (8th
Cir. 2006) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)).
“The ALJ is in the best position to gauge the credibility of testimony and is
granted deference in that regard.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Schultz v. Astrue, 479 F.3d 979, 982 (8th Cir. 2007). Evidence that both supports and
detracts from the Commissioner’s decision must be considered, but the decision may not
be reversed merely because substantial evidence supports a contrary outcome. Id. See
also, Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001). In other words, “a position
can be justified even though it is not correct.” Pierce v. Underwood, 487 U.S. 552, 566
n. 2 (1988).
Salih claims the ALJ incorrectly assessed the plaintiff’s credibility, resulting in an
inaccurate and unsupported determination of the plaintiff’s RFC. He further claims the
VE failed to properly consider Salih’s actual past work experience, the VE’s
identification of jobs consistent with that past work experience were therefore incorrect,
and even assuming they were correct, the physical requirements of the jobs identified
exceed the plaintiff’s RFC.
Determination of the Plaintiff’s RFC.
The ALJ must determine a claimant's RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and the
claimant's own descriptions of his limitations. Tellez v. Barnhart, 403 F.3d 953, 957 (8th
Cir. 2005); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995). Before the ALJ
determines an applicant's RFC, "the ALJ must determine the applicant's credibility, as his
subjective complaints play a role in assessing his RFC." Ellis v. Barnhart, 392 F.3d 988,
995-96 (8th Cir. 2005). See also Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir.
2001) ("Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
“If an ALJ explicitly discredits the claimant's testimony and gives good reason for
doing so, we will normally defer to the ALJ's credibility determination.” Renstrom v.
Astrue, 680 F.3d 1057, 1065-66 (8th Cir. 2012). Polaski v. Heckler, 739 F.2d 1320 (8th
Cir.1984), outlined the following factors to be considered when assessing a claimant's
the claimant's daily activities;
the duration, intensity, and frequency of pain;
the precipitating and aggravating factors;
the dosage, effectiveness, and side effects of medication;
any functional restrictions; (6) the claimant's work history; and
the absence of objective medical evidence to support the claimant's
Id. The ALJ must make an express credibility determination, explaining the reasons for
discounting the claimant’s testimony, setting forth the inconsistencies, and discussing
the Polaski factors. Renstrom, 680 F.3d at 1066. The ALJ is not required to discuss
each Polaski factor, so long as the factors are acknowledged and examined before
discounting a claimant's subjective complaints. Renstrom, 680 F.3d at 1067.
As set forth in his opinion, the ALJ found that Salih’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but his
“statements concerning the intensity, persistence and limiting effects of these symptoms
are not credible.” (TR 23). The ALJ noted “discrepancies between the claimant's
assertions regarding the severity and limitations of his symptoms and accounts in the
medical evidence of signs and findings which are inconsistent with the claimant's
allegation of disabling impairment.” (TR 23).
The ALJ explained that the objective findings on medical testing are incongruous
with the plaintiff’s expressed symptoms. Although the plaintiff was diagnosed with
degenerative disc disease, including lumbar spondylosis at L4-LS and L5-S1 and a
possible annular tear at L4-L5, the MRI revealed no thecal sac or root compression, and
no foraminal narrowing, and the plaintiff was not complaining of radicular pain or
parathesias. (TR 23). Instead, Salih complained of pain in his right hip. His retain
doctors considered SI joint dysfunction as a possible diagnosis, but that was ruled out
when, upon examination, Salih exhibited no tenderness at the SI joint, had a negative
Faber and Patricks testing, and flexion did not elicit pain. Physical therapy, a right L5-S1
nerve block, chiropractic care and pain medications had no appreciable impact on the
plaintiff’s complaints. Dr. Diamant, a treating physician who fully evaluated Salih’s
symptoms and possible treatment modalities, could not find either a cause or a remedy.
The doctors agree Salih is not a candidate for surgery and contrary to Salih’s assertion,
none of them stated Salih must lay down every two hours. In the end, Salih’s treating
physician’s and chiropractors, along with those performing independent medical
evaluations, were unable to explain the pain pattern and source of the plaintiff’s stated
symptomology, much less the extent of his complaints.
Although an ALJ cannot discount subjective complaints solely because they are
not fully supported by objective medical evidence, those complaints may be discounted
based on inconsistencies in the record as a whole. Ellis v. Barnhart, 392 F.3d 988, 996
(8th Cir. 2005). The ALJ’s summary of the inconsistencies between his subjective
complaints and the objective findings, or lack of thereof, is fully supported by the record
and, in turn, supports his conclusion that Salih was not fully credible. Id. (affirming the
ALJ’s credibility finding where the plaintiff claimed that back and hip pain were severe
enough to prevent him from sitting or standing for any length of time, but the medical
examination revealed normal, or near normal, range of motion in his shoulders, hips,
cervical spine, and lumbar spine).
The ALJ also considered Salih’s willingness to work. As the ALJ’s opinion states,
Dr. Diamant released Salih to return to work, and Salih responded by asking for a note
stating he was unable to work. Dr. Diamant refused, stating the plaintiff could perform
sedentary to light duty work. A plaintiff’s lack of initiative or disincentive to return to
work can support an ALJ’s finding that the plaintiff’s subjective complaints are not
Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012) (holding the
claimant’s work history, and his possible disincentive to return to work because of his
worker's compensation litigation, along other inconsistencies in the record as a whole,
undermined the claimant’s credibility).
Citing to Salih’s written statements, the ALJ questioned how the plaintiff could
carry out his described daily activities with his complaints of disabling symptoms and
limitations. In response to SSA questionnaires, Salih had stated that he reads books two
to four hours a day and watches television two hours a day; can clean, cook, sew, play
cards, and garden; goes to the store daily, to church twice a week and to the park; and he
can climb stairs and drive. “[A]cts such as cooking, vacuuming, washing dishes, doing
laundry, shopping, driving, and walking, are inconsistent with subjective complaints of
disabling pain.” Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009).
The ALJ further noted that Salih has not taken, nor been prescribed, any narcotic
based pain relieving medications despite his complaints of severe pain, and that he
originally rejected pain medications as too strong. The ALJ commented that Salih’s
alleged side effect from pain medications, an upset stomach, would not have significantly
interfered with his ability to work. Evidence that a claimant did not regularly require
prescription medication or participate in physical therapy to alleviate symptoms of pain
can create doubt in a reasonable adjudicator's mind regarding the veracity of the
subjective complaints. Curran-Kicksey v. Barnhart, 315 F.3d 964, 969 (8th Cir. 2003).
The ALJ discussed many Polaski factors in discrediting Salih’s credibility and
explained his reasoning, all of which is fully supported by the record. The ALJ’s
credibility determination will be affirmed. Baker v. Barnhart, 457 F.3d 882, 893-894 (8th
Cir. 2006) (affirming the ALJ’s credibility decision where the claimant’s FCE was
invalid due to symptom magnification, the claimant chose not to take pain medication,
and the numerous medical opinions of record agreed that the claimant’s reports of pain
were inconsistent with his physical condition).
The ALJ’s RFC Finding.
After assessing Salih’s credibility, the ALJ concluded:
[W]hen provided the opportunity of normal breaks in the mid-morning,
lunch time and mid-afternoon, [Salih] the residual functional capacity to:
lift twenty pounds occasionally and ten pounds frequently: stand for six
hours of an eight hour workday: sit for six hours of an eight hour workday:
and walk on a frequent basis. He is limited to performing only occasional
activities of bending, stooping or kneeling. He must not be exposed to
concentrated cold temperature extremes or wetness. He has no limitations
with regards to the use of his extremities, performing overhead reaching or
the ability to climb stairs.
In evaluating a claimant's RFC, the ALJ is not limited to considering medical
evidence, but is required to consider at least some supporting evidence from a
professional. See 20 C.F.R. § 404.1545(c) ; Baldwin v. Barnhart, 349 F.3d 549, 556 (8th
Cir. 2003) ; Masterson v. Barnhart, 363 F.3d 731, 737-38 (8th Cir. 2004). In formulating
his RFC opinion, the ALJ relied on his credibility determination, the plaintiff’s medical
records, and physical RFC findings provided by Dr. Reed, Dr. Knosp, and Dr. Green,
each of whom formulated their opinions based on reviewing the plaintiff’s medical
records and, in Dr. Green’s case, examining the plaintiff. The ALJ’s RFC assessment
mirrors the restrictions set forth in Dr. Reed’s report, which was affirmed by Dr. Knosp,
and further supported by Dr. Green. The ALJ’s RFC finding is fully supported by the
The VE’s Opinions.
The VE opined that Salih remained able to perform his past relevant work as a
production assembler (light, unskilled, SVP 2, DOT 706.687-010) and as a cashier II
(light, unskilled, SVP 2, DOT 211.462-010).
In reliance on this opinion, the ALJ
concluded Salih was not disabled and denied his disability claim.
Salih argues the ALJ failed to properly consider his actual past relevant work and
erroneously concluded Salih could return to that work. The plaintiff bears the burden of
proving he cannot perform his past relevant work. King v. Astrue, 564 F.3d 978, 979
(8th Cir. 2009); Samons v. Astrue, 497 F.3d 813, 821 (8th Cir. 2007).
The ALJ’s opinion states Salih’s past relevant work include the occupations of
production assembler (light, unskilled, SVP 2, DOT 706.687-010) and cashier II (light,
unskilled, SVP 2, DOT 211.462-010). The opinion states Salih remains able to perform
those jobs as they are actually and generally performed. At step four, the ALJ “must
also make explicit findings regarding the actual physical and mental demands of the
claimant's past work, . . . but may discharge this duty by referring to the specific job
descriptions in the Dictionary of Occupational Titles that are associated with the
claimant's past work.” Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999).
Salih claims, however, that as described during his testimony, the DOT
descriptions of a Cashier II and a production assembler (light, unskilled) do not include
all the tasks he was required to perform when employed in those positions. Specifically,
he claims that as a cashier, he was required to lift and carry propane tanks and products
to fill the refrigerator; and as a production assembler, he was required to bend, reach, lift
and carry beyond his current abilities. Salih argues that the actual requirements of his
past relevant work were erroneously ignored by the ALJ and exceed his RFC as
determined by the ALJ.
To the extent the plaintiff is arguing that the court must incorporate his testimony
into the descriptions of his past jobs, as to each of those occupations, the plaintiff was
asked to confirm that his prior written descriptions of the jobs in SSA documentation
were correct. He testified that they were. The ALJ was entitled to rely on that testimony
as an accurate description of the plaintiff’s work. The plaintiff argues that he was
confused because the SSA documents and the ALJ proceedings were conducted in
English, which is not his primary language. But there are references throughout the SSA
records and in the medical records confirming that Salih reads, writes, speaks and
understands English. And the testimony before the ALJ—particularly when Salih was
explaining his dissatisfaction with the type and quality of his medical care—exhibits a
substantial command of the English language. The ALJ did not error in relying on the
plaintiff’s written submissions, and his testimonial confirmation of those submissions, in
determining the nature of Salih’s past relevant work.
The plaintiff may be arguing that the DOT descriptions of his past employment
are incorrect because they do not include all the tasks he actually performed. To the
extent he is claiming the DOT is an unreliable source for identifying occupations and
their related requirements, his argument fails. “The DOT is a primary source ‘of reliable
job information’ that is used routinely by the Commissioner when determining whether
suitable jobs exist in the regional economy.” Olatubosun v. Astrue, case no. 8:09cv376,
2010 WL 3724819 at *14 (D.Neb. Sept. 17, 2010) (Smith Camp, J., presiding) (citing
20 C.F.R. § 404.1566(d)). The ALJ did not error by relying on the DOT in determining
Salih’s ability to perform past relevant work.
Finally, citing his hearing testimony which added tasks not identified in his
written descriptions of his past employment, the plaintiff argues his past relevant work
required lifting and bending beyond his current abilities as determined by the ALJ.
However, a VE can consider the demands of the claimant's past relevant work either as
the claimant actually performed it or as it is performed in the national economy. Wright
v. Astrue, case no. 12-1198, 2012 WL 4840766 at *1 (8th Cir. Oct. 12, 2012). “The
mere inability of a claimant to perform certain requirements of his past job does not
mean that he is unable to perform ‘past relevant work’ as that phrase is used in the
regulations.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Salih had the burden of proving that he was unable to return to his past relevant
work; if he remains able to perform any of his past relevant jobs, he is not disabled. The
ALJ determined Salih’s RFC, and that determination is supported by the evidence of
record. Relying on the testimony of the VE, the ALJ concluded Salih’s past relevant
work included the occupations of Cashier II and a light duty production assembler, and
that upon consideration of the plaintiff’s residual RFC, the plaintiff could return to those
positions as they are generally performed in the national economy. The record supports
IT IS ORDERED that the findings and conclusions of the ALJ are affirmed.
Dated this 5th day of February, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
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