Donna J. Davis v. Shirley S. Chater ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1036
___________
Donna J. Davis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
1
John J. Callahan, Acting Commissioner *
of Social Security, *
*
Appellee. *
___________
Submitted: June 12, 1997
Filed: September 24, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, BEEZER,2 and WOLLMAN, Circuit
Judges.
___________
1
John J. Callahan was named to serve as Acting Commissioner of Social Security
effective March 1, 1997. He has been substituted for Shirley S. Chater pursuant to Fed.
R. App. P. 43(c).
2
The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
WOLLMAN, Circuit Judge.
Donna Davis appeals from the district court’s order affirming the
Commissioner’s denial of her application for Disability Insurance Benefits. We reverse
and remand.
I.
Davis was thirty-three years old at the time she applied for benefits. She has her
general equivalency degree and has employment experience as an order entry clerk,
secretary, cashier, and assembly line worker.
Davis filed for benefits on May 20, 1993, claiming that she became disabled as
the result of a fall at work on August 18, 1992, which exacerbated pain stemming from
the spinal fracture she had sustained in a car accident some fifteen years earlier. At the
hearing before the administrative law judge (ALJ), held on May 13, 1994, Davis
testified that soon after the fall she began experiencing severe pain in her neck and
upper back and continued to be in severe pain for the next few weeks. In addition to
the pain in her neck and back, Davis found it painful to breathe. Also, her leg shook,
making it difficult for her to control her walking. In an attempt to relieve her pain,
Davis underwent surgery to remove the Harrington rods3 that had been inserted into her
back to repair her spinal fracture. Davis testified that following that surgery the
pressure in her lower back worsened, her legs began to shake severely all the time, her
knees began to lock up, and her feet “quit working.” In addition, she testified that she
experiences severe migraine headaches and numbness in her legs.
3
Harrington rods are “a system of metal hooks and rods inserted surgically in the
posterior elements of the spine to provide distraction and compression in treatment of
scoliosis and other deformities.” The Sloan-Dorland Annotated Medical-Legal
Dictionary, p. 305 (1992 Supplement).
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The ALJ discredited Davis’s subjective complaints of disabling pain and found
that although Davis suffered from a severe impairment, the medical evidence did not
indicate an impairment of sufficient severity to meet a listed impairment. The ALJ
concluded that Davis was restricted in her ability to perform heavy manual labor or
work requiring frequent stooping or working in a bent-over position for prolonged
periods of time, restrictions which would not preclude her from performing her past
relevant work.
On appeal, Davis argues that the Commissioner’s decision is not supported by
substantial evidence because it was based on the ALJ’s erroneous determination that
Davis’s subjective complaints were not credible.
II.
We must affirm the Commissioner’s decision denying benefits if substantial
evidence on the record as a whole exists. See Lawrence v. Chater, 107 F.3d 674, 676
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so that
a reasonable mind might find it adequate to support the conclusion.” Id. (citations
omitted). In determining whether substantial evidence exists, “we must consider both
evidence that supports and evidence that detracts from the [Commissioner’s] decision,
but we may not reverse merely because substantial evidence exists for the opposite
decision.” Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (citation omitted).
“An ALJ may discount a claimant’s subjective complaints of pain only if there are
inconsistencies in the record as a whole.” Ostronski v. Chater, 94 F.3d 413, 418 (8th
Cir. 1996). The ALJ must consider the claimant’s prior work history; daily activities;
the duration, frequency, and intensity of pain; precipitating and aggravating factors;
dosage, effectiveness, and side effects of medication; and functional restrictions. See
id. (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
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The ALJ discredited Davis’s subjective complaints of pain, finding them to be
contradicted by medical evidence. He found that Davis’s “pain has not caused her to
see a physician often and she has not been prescribed medication in such dosage or
quantity so as to indicate severe disabling pain. There is no indication that she does not
do her own household chores and other activities.”
The ALJ based his determination that medical evidence contradicted Davis’s
complaints in large part on the report of Dr. Leventhal, an orthopedic specialist. Dr.
Leventhal noted that he was at a loss to explain all of Davis’s complaints, concluded
that “her problem is complex and multifactorial,” and surmised that Davis had a
considerable amount of symptom magnification with functional overlay. There is
significant medical evidence, however, that supports Davis’s complaints of disabling
pain, including Dr. Leventhal’s own findings. Dr. Leventhal’s examination of Davis
revealed that Davis had marked limitation of forward bending and extension, restricted
right and left lateral bending, moderate spasticity of her lower extremities with
hyperreflexia in her knees and ankles, and sustained clonus4 of both lower extremities.
Dr. Leventhal noted that Davis walked with a spastic gait, had a difficult time walking
on her heels and toes, and that she complained bitterly of pain. He recommended a
check for infection, an MRI of her thoracic and lumbar spine, and consideration of a
Baclofen pump5 to help with her spasticity. He referred her to Dr. Feler, a
neurosurgeon, for consultation about an implantable Baclofen pump. Davis was
subsequently unable to complete the MRI due to extreme claustrophobia.
4
Clonus is “alternate muscular contraction and relaxation in rapid succession.”
The Sloan-Dorland Annotated Medical-Legal Dictionary, p. 149 (1987).
5
Baclofen (Lioresal) “is useful for the alleviation of signs and symptoms of
spasticity resulting from multiple sclerosis, particularly for the relief of flexor spasms
and concomitant pain, clonus, and muscular rigidity.” Physician’s Desk Reference, p.
829 (50th ed. 1996). A Baclofen pump is recommended for chronic use of Baclofen
injection, which “is indicated for use in the management of severe spasticity of spinal
cord origin.” Id. at 1596.
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The findings of several other physicians likewise rebut the ALJ’s conclusion that
the medical evidence contradicted Davis’s complaints of pain, and they also contradict
the ALJ’s finding that Davis sought medical attention infrequently and was not
prescribed medications in such dosage or quantity to support her allegations of pain.
Immediately following her fall, Davis went to her family physician, Dr. Mitchell, who
determined that Davis suffered muscle strain to her trapezius and mild contusion to her
left hand and prescribed Dolobid and Parafon DSC6 for pain. The following day Davis
saw an emergency room physician, Dr. Page, who also diagnosed trapezius strain and
prescribed Tylenol #3 for Davis’s pain and recommended that she not work the next
day. The following day, August 20, 1992, Davis returned to Dr. Mitchell, complaining
of pain in her neck and nausea and vomiting. Dr. Mitchell recommended that she not
work for another four days, continued her on the Parafon DSC, and prescribed
Darvocet N-1007 for her pain.
On August 24, Davis saw Dr. Shedd, a physician whom she previously had seen
for back-related problems. Dr. Shedd prescribed Percodan,8 and instructed Davis not
to work for one week. On August 28, Davis returned to Dr. Mitchell, who continued
Davis on Parafon DSC and Darvocet N-100 and additionally prescribed Clinoril.9
Davis had a follow-up visit with Dr. Mitchell on September 3, and was continued on
6
"Dolobid is indicated for acute or long-term use for symptomatic treatment of
. . . [m]ild to moderate pain.” Id. at 1655. Parafon DSC is “indicated as an adjunct
to rest, physical therapy, and other measures for the relief of discomfort associated with
acute, painful musculoskeletal conditions.” Id. at 1581.
7
Darvocet N-100 is indicated for the relief of mild to moderate pain. Id. at 1434.
8
Percodan is indicated for the relief of moderate to moderately severe pain. Id.
at 939.
9
Clinoril is indicated for acute or long-term use in the relief of signs and
symptoms of a number of types of arthritis and acute painful shoulder injuries. Id. at
1619.
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the previously-prescribed medications and continued leave from work. Davis saw Dr.
Mitchell again on September 10 and September 17, and was referred to Dr. Thompson,
an orthopedic surgeon, whom she saw on September 18, for evaluation of the rods in
her back. Dr. Thompson found that Davis had full, albeit painful, motion of her
cervical spine, difficulty in toe and heel walking, and some atrophy of the left
quadricep, and that her reflexes were hyperactive with an unsustained clonus at both
ankles and several beats at the knees.
Upon referral by Dr. Thompson, Davis saw Dr. Gibson, a neurologist, on
November 3, 1992. Dr. Gibson noted tenderness over Davis’s left Harrington rod. In
addition, he found her gait and legs were spastic and that she had unsustained clonus
at the knees and ankles with crossed adductors. He also noted that she had decreased
pinprick sensation in the lateral aspect of the right leg and thigh. Dr. Gibson stated that
Davis had been developing increased spasticity since her fall and “there is certainly no
doubt that on examination today she is quite spastic with signs suggesting a problem
in the thoracic cord.” Dr. Gibson prescribed Lioresal (Baclofen) for the spasticity in
Davis’s legs and recommended either a CT scan or myelogram.
Davis was next referred to Dr. Reding, a neurosurgeon, who upon examining
Davis was doubtful that she had suffered a significant additional neurologic injury but
who also recommended that Davis have a myelogram, which she subsequently
underwent on November 30. The myelogram revealed that Davis had a mild narrowing
of the anterior aspect of the canal at the T11-12 level secondary to posterior osteophyte
formation and evidence of a mild disc bulge, with small posterior osteophytes at the T5-
6 level. Based on these findings, Dr. Reding concluded that the neurologic findings
regarding Davis’s legs related to her previous injury and suspected that her leg
symptoms were associated with the pain in her spine. Dr. Reding then suggested that
Davis might want to proceed with removal of the Harrington rods in hopes of obtaining
some pain relief. A tomogram of T11-12 on January 7, 1993, showed minimal anterior
wedging of T12, associated with mild degenerative change at the T11-12 end plate.
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On February 5, 1993, Davis was admitted to the hospital for removal of the
Harrington rods. Dr. Thompson, who performed surgery to remove the rods, indicated
that prior to surgery Davis had weakness in her right quadricep, spasticity of both lower
extremities, unsustained prominence at the knees and ankles, extensive plantar response
bilaterally, and decreased sensation in the lateral aspect of her right leg.
Davis was next seen by Dr. Shedd on May 4, 1993, and was again observed
having weak heel and toe walking, to the point that she had to hold on to the examining
table. In addition, Dr. Shedd noted that Davis walked with her knees locked and that
she had very hyperactive reflexes bilaterally, dyscoordination with the heel-knee-ankle
test, and unsustained myoclonus in both ankles. Dr. Shedd prescribed Lioresal and
referred her to Dr. Leventhal, the orthopedic specialist whose findings are set forth
above.
On May 27, 1993, Davis again saw Dr. Shedd, who found she had paraspinuous
lumbar muscle spasm and was severely limited in movement in any direction, and
prescribed additional Baclofen. Davis was next seen by Dr. Feler on August 31, 1993.
Dr. Feler’s examination revealed cold allodynia and hyperthia, sustained clonus
bilaterally, bilateral Babinski’s signs,10 spasticity of her lower extremities, and
occasional spontaneous spasms, and noted that Davis had difficulty ambulating and that
the range of motion in her hips was mildly limited. Dr. Feler concluded that in addition
to her previous spinal cord injury, Davis had neural injury pain in the lower extremities,
facet syndrome and intractable spasticity and lower extremity spasm, and prescribed
Tegretol and Daypro,11 in addition to Baclofen.
10
Babinski’s sign is “the extension of the great toe with fanning of the other
toes,” and “is of spinal origin and attests to an upper motor neuron lesion.” The Merck
Manual, p. 1384 (16th ed. 1992).
11
"Daypro is indicated for acute and long-term use in the management of the
signs and symptoms of osteoarthritis and rheumatoid arthritis.” Physician’s Desk
Reference at 2426. Tegretol is indicated for use as an anticonvulsant and in the
treatment of pain associated with trigeminal neuralgia (a disorder of the trigeminal
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Davis returned to Dr. Feler on October 5, 1993, complaining that the Tegretol
was making her feel “high.” Dr. Feler adjusted her prescription accordingly. On
November 16, 1993, Davis underwent a CAT scan of her lumbar spine, which revealed
mild bilateral foraminal narrowing secondary to hypertrophic changes, in addition to
degenerative changes in the facet joints.
Davis testified that although at the time of her hearing she was taking six
prescription medications, they did not completely relieve her symptoms. She stated
that “it doesn’t take the pain away and it doesn’t take the shaking away. It takes the
edge off of it, to where I can actually deal with the pain . . . it helps me not be in so
much pain.”
The ALJ’s finding that Davis’s subjective complaints of pain were contradicted
by the level of her daily activities is likewise without support in the record. The ALJ
stated, “there is no indication that [Davis] does not do her own household chores and
other activities. She enjoys reading, watching television, needlepoint, and visiting. She
is able to drive.” Uncontroverted testimony reflects, however, that Davis is not able
to perform many of her daily activities, and the fact that Davis could perform a few
light household chores does not constitute substantial evidence that Davis possessed
the functional capacity to perform her past relevant work. See Baumgarten v. Chater,
75 F.3d 366, 369 (8th Cir. 1996) (“We have repeatedly held . . . that the ‘ability to do
activities such as light housework and visiting with friends provides little or no support
for the finding that a claimant can perform full-time competitive work.’”) (citation
omitted).
nerve producing bouts of severe, lancinating pain lasting seconds to minutes in the
distribution of one or more of its sensory divisions, The Merck Manual at 1509).
Tegretol “should not be used for the relief of trivial aches and pains.” Physician’s Desk
Reference at 852.
-8-
Davis testified that during a twenty-four hour period she has to lie down about
twelve hours. She stated that she has tried to do laundry and to vacuum her floor, but
that “it hurts so much that by the end of the day, I’m in so much pain that it’s not worth
it. So I either have to take more medication, to make it through it, or not do it.” She
also testified that someone else cooks the majority of her family’s meals and takes her
grocery shopping, and that she cannot clean the bathtub or mop floors. She stated that
she has tried to find things to do around the house, but hasn’t found a lot that she can
do, and can only do “just really the basic, the easiest things around the home.” In
addition, Davis testified that she occasionally drives twelve miles to take her husband
to work and home again, a total driving time of only some two hours per week.
Davis’s husband testified that Davis’s condition has been worsening since her
fall, that even when Davis does little things, she pays for it, and that it doesn’t take
much to make her sore. He also testified that he must often assist her in walking and
that Davis does not sleep well at night because of the spasms. A friend of Davis’s who
sees her nearly every day testified that since Davis’s injury and surgery to remove the
Harrington rods she has had a lot of pain in her back and bad headaches and that her
knees lock up, causing her to fall. This witness testified that Davis is very limited in
her activities and that she takes care of Davis and does most of Davis’s cooking.
Another friend testified that she has noticed a “tremendous difference in [Davis]
and in the abilities that she had” since her fall and that she has seen a drastic difference
in Davis’s mobility since the removal of her Harrington rods. Hyde testified that it was
a major effort for Davis to climb the three steps to Hyde’s door, and for her to get up
out of a chair and walk the few steps to the door. Hyde also stated that she has heard
Davis “moan and groan” when moving around in a chair.
Although it was for the ALJ as trier of fact to give the testimony of family
members and friends such credence as he deemed warranted, he was not free to find
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that Davis had offered no evidence in support of her allegations regarding her daily
activities.
Because we conclude that the ALJ failed to conduct such a review, we reverse
and remand for consideration of Davis’s subjective complaints of pain in accordance
with the factors set forth in Polaski v. Heckler in light of all of the evidence in the
record. See Ingram v. Chater, 107 F.3d 598, 605 (8th Cir. 1997).
The judgment is reversed, and the case is remanded to the district court with
directions to remand it to the Commissioner for further proceedings consistent with the
views set forth in this opinion.
BEEZER, Circuit Judge, dissenting.
I respectfully dissent.
Davis argues that the district court erred in affirming the Commissioner’s
decision to deny benefits. Davis maintains that substantial evidence does not support
the ALJ’s finding that her “allegations [of pain] are not credible to the extent alleged.”
A plethora of physicians have examined and treated Davis. These experts
reached conflicting conclusions regarding Davis’s pain, disability and residual
functioning capacity. One examining physician concluded that Davis was totally
disabled. On the other hand, Dr. Leventhal stated that Davis’s pain was “out of
proportion to all of her physical findings.”
Although unable to perform some work after her 1975 accident, Davis had been
employed in a number of different capacities prior to her 1992 fall. Three neurologists
that examined Davis determined that the injuries she sustained before the 1992 fall
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were the likely cause of her discomfort. They made no conclusions respecting whether
Davis was totally disabled.
The ALJ considered Davis’s testimony, testimony offered by Davis’s family and
friends, and the range of medical opinions introduced into evidence. “We therefore are
presented with the not uncommon situation of conflicting medical evidence. The trier
of fact has the duty to resolve that conflict.” Richardson v. Perales, 402 U.S. 389, 399
(1971). Although the ALJ acknowledged that Davis suffered pain, he found that
Davis’s allegations were not credible to the extent she alleged.
Substantial evidence supports the ALJ’s findings. I would affirm the decision
of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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