Jerry P. Comstock v. Shirley S. Chater ( 1996 )

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No. 95-4074
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Jerry P. Comstock, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Shirley S. Chater, *
Commissioner of Social *
Security Administration, *
*
Appellee. *
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Submitted: May 17, 1996
Filed: August 5, 1996
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Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Jerry Comstock appeals the district court's1 order affirming the
denial of his application for Social Security disability benefits. We
affirm.
I.
Jerry Comstock was forty-one years old when he first applied for
Social Security disability benefits in 1982. Comstock had completed the
eleventh grade and had worked as a machinist, janitor, dock hand, gas
station attendant, and golf course grounds keeper. In his claim for
benefits, he alleged that he became disabled as of April 7, 1981, due to
a back injury occurring on that date. His claim was denied initially and
upon
1
The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.
reconsideration. In 1985, Comstock again applied for disability benefits,
alleging a disability onset date of April 21, 1985, because of back
problems. This application was also denied. Finally, in Comstock's third
application for disability benefits in 1986, he was found disabled as of
September 30, 1986, and was awarded benefits.
In 1989, Comstock requested that the denial of his first application
be reopened. The Social Security Administration denied his application
originally and upon reconsideration. After conducting a hearing, the
Administrative Law Judge (ALJ) also denied the claim, finding that Comstock
was not disabled during the relevant period beginning April 7, 1981, and
continuing through September 30, 1986. The Appeals Council denied
Comstock's request for review and the district court affirmed the ALJ's
decision. Comstock appeals, alleging that the ALJ erred in (1) finding
that Comstock engaged in substantial gainful employment from 1983 through
1986; (2) failing to properly consider Comstock's combination of
impairments; (3) discrediting Comstock's testimony regarding his subjective
complaints of pain; and (4) finding that Comstock could return to his past
relevant work as a gas station attendant.
II.
A denial of disability benefits will be upheld if it is supported by
substantial evidence on the record as a whole. Baumgarten v. Chater, 75
F.3d 366, 368 (8th Cir. 1996). Substantial evidence is that which a
reasonable mind would find as adequate to support the ALJ's decision. Id.
Under the Social Security disability program, a claimant is
considered disabled if he "is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment[.]" 42 U.S.C. § 1382c(a)(3)(A). The first
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step in determining whether a claimant is disabled is to ascertain whether
the claimant engaged in substantial gainful employment during the relevant
period. 20 C.F.R. §§ 404.1520(b), 416.920(b). If a claimant engages in
substantial gainful activity, there can be no finding of disability, even
if the claimant does in fact have an impairment. Id.; Thompson v.
Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1989).
To qualify as substantial gainful activity, the work activity must
be both substantial and gainful. 20 C.F.R. § 416.972. Substantial work
includes physical or mental work, even if done on a part-time basis. 20
C.F.R. § 416.972(a). Gainful work merely means work done for compensation.
20 C.F.R. § 416.972(b). In determining whether a claimant is substantially
gainfully employed, criteria such as the claimant's level of earnings from
the work activity and whether the claimant is working in a special or
sheltered environment are relevant. 20 C.F.R. § 404.1574(a). Under the
regulations, substantial gainful activity is presumed if the claimant's
average earnings are greater than $300 per month.2 20 C.F.R.§
404.1574(b)(2)(vi).
The ALJ found that Comstock engaged in substantial gainful employment
during 1983, 1984, 1985, and a significant portion of 1986. There is
substantial evidence contained in the record to support the ALJ's
conclusion. First, Comstock's earnings in 1983 and 1984 exceeded $300 per
month. Although Comstock did not submit a tax return for 1985, he
testified at the hearing that he continued to work at his job as a gas
station attendant until the station closed in the fall of that year. In
1986, Comstock continued to earn a significant amount of income until his
onset disability date of September 30. In any event, even assuming that
Comstock did not engage in any substantial gainful employment during the
relevant period, we find that he was not entitled to
2
This amount applies for years after 1979 and before 1990.
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benefits for the reasons discussed below.
If a claimant has not been substantially gainfully employed during
the relevant period, the next step in making a disability determination
involves deciding whether the claimant suffers from a severe impairment.
20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant suffers from an
impairment, a determination must be made as to whether that impairment
meets or equals an impairment listed in the regulations; if so, the
claimant is considered disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d) and
Part 404, Subpart P, Appendix 1. The ALJ found that Comstock had the
following severe impairments: chronic low back pain syndrome with history
of L5,S1 disc excision, tendinitis of the left shoulder, obesity,
hypertension, dysthymic disorder, and alcohol abuse. The ALJ concluded,
however, that none of Comstock's impairments, singly or in combination, met
any of the impairments listed in the regulations. Finally, the ALJ
determined that Comstock could perform light, and probably medium work,
including his past relevant work as a gas station attendant.
The objective medical evidence in the record supports the ALJ's
determination that Comstock's combined impairments did not constitute a
disability as defined in the regulations. The record reveals that Comstock
suffered a back injury in 1981 for which he underwent surgery. X-rays
taken of Comstock's lumbar spine in 1982 showed no significant
abnormalities, except for mild narrowing at the L5,S1 intervertebral disc
space. Although there was some conflicting evidence, most of the tests
performed on Comstock during this period revealed that Comstock's motor and
sensory components of the nervous system were intact, that he had only
slight limitation of flexion and extension, and that his reflexes were
normal.
In March 1982, Dr. Tietgen, Comstock's treating physician, noted that
Comstock "could get on and off the examination table
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without difficulty" and he "carried himself well." He recommended,
however, that Comstock "avoid heavy lifting, working in a bent over
position or long periods of standing." In June 1982, Dr. Hopkins agreed
that Comstock should avoid physical exertion and long periods of standing,
but concluded that Comstock should be able to perform some type of gainful
employment. In an examination conducted by Dr. Harper in August 1982,
Comstock was able to heel and toe walk normally and displayed no weakness
in his motor examination. All of the residual functional capacity
assessments performed in 1982 and 1986 indicated that Comstock could stand
and/or walk for six hours and sit for six hours in a normal workday, as
well as lift twenty-five pounds frequently and fifty pounds maximum.
From October 1982 through 1984, it appears that Comstock failed to
seek significant medical treatment for back pain. After Comstock resumed
treatment in April 1985 following a car accident, his doctors noted a
slight limitation of motion in Comstock's spine and diagnosed Comstock with
mild degenerative disc disease in the lower lumbar spine. In January 1986,
Dr. Quinn concluded that Comstock's condition was not incapacitating. He
recommended conservative treatment, including physical therapy and a back
exercise program. A lumbar myelogram performed in March 1986 confirmed
narrowing at L5,S1 but was otherwise unremarkable. The medical evidence
supports the ALJ's finding that Comstock's back problems did not equal a
listed impairment in the regulations.
Comstock argues that the ALJ failed to properly consider his mental
impairments. Comstock was diagnosed with alcohol abuse and dysthymic
disorder in a psychological evaluation performed in October 1982. The
evaluation recommended that Comstock seek professional treatment and enter
a detoxification program.
Comstock testified at the hearing that he attended Alcoholics
Anonymous for approximately six months. Aside from that, he
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presented no evidence that he sought regular medical treatment for this
problem. Moreover, other than an occasional bout of gastritis, which was
controlled by antacids, there was no evidence that Comstock's alcoholism
affected his health or ability to work. Comstock's actual work history
supported the ALJ's determination that his alcoholism was controllable.
See Mapes v. Chater, 82 F.3d 259, 263 (8th Cir. 1996).
In addition, there was no evidence in the record that Comstock sought
regular medical treatment for his dysthymia. Furthermore, three
psychiatric evaluations done on Comstock in 1986 agreed that he was not
suffering from a disability. One evaluation noted that Comstock's mental
impairments were not severe, while the other two noted that Comstock had
no impairments. We agree that there was substantial evidence to support
the ALJ's determination that Comstock's combined impairments were not
disabling.
Comstock next contends that the ALJ erred in finding that his
subjective complaints of pain were not credible. We find that the ALJ
properly applied the guidelines set out in Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984) in evaluating Comstock's subjective complaints.
The ALJ found that Comstock's complaints were inconsistent based on the
objective medical evidence, lack of regular treatment and medication, work
activity, and past work history.
We agree that the lack of objective medical evidence contradicted
Comstock's claims of disabling pain. See Smith v. Shalala, 987 F.2d 1371,
1374 (8th Cir. 1993) (ALJ can discount claimant's complaints of pain when
medical evidence failed to establish significant back problem). Moreover,
the ALJ was entitled to discount Comstock's complaints based on his failure
to pursue regular medical treatment. See Benskin v. Bowen, 830 F.2d 878,
884 (8th Cir. 1987) (failure to seek regular treatment or obtain pain
medication inconsistent with complaints of disabling
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pain). The ALJ pointed to a 1982 report by Dr. Hopkins which noted that
Comstock was taking "no medicine steadily and is not under regular care."
In addition, Comstock failed to seek regular treatment for his back pain
from late 1982 through 1984. At the hearing, Comstock stated that he took
aspirin, used a whirlpool tub, and had his wife rub ointment on his back
to alleviate the pain. The ALJ properly found that these measures did not
support a claim of disabling pain. See id. (disabling pain not indicated
when claimant merely took hot showers and used Advil and aspirin to relieve
pain).
In further support of his decision, the ALJ found that Comstock's
work activity belied his claim of disabling pain. See Smith, 987 F.2d at
1374-75 (claimant's extensive daily activities, including performance of
pastoral duties, inconsistent with complaints of disabling pain). Not only
did Comstock work as a gas station attendant from 1983 through 1985, he
also had a full-time job for several months during 1986 which required him
to dig around telephone poles. Finally, the ALJ noted that Comstock's
prior work history was not "particularly notable and has been characterized
by fairly low earnings and some significant breaks in employment." We
agree that these factors, taken together, cast doubt on Comstock's
complaints of disabling pain.
Comstock also argues that the ALJ erred in concluding that he could
return to his past relevant work as a gas station attendant. The
Dictionary of Occupational Titles classifies a gas station attendant as
medium work. It requires occasional lifting of twenty to fifty pounds and
frequent lifting of ten to twenty-five pounds, along with occasional
bending. At the hearing, Comstock stated that his basic responsibilities
at the gas station included pumping gas, checking oil, and running the cash
register. On vocational reports he submitted prior to the hearing,
however, he listed additional duties such as changing tires, repairing
minor mechanical problems, and lifting and carrying objects weighing from
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twenty-five to fifty pounds such as batteries, tires, and oil. The ALJ
concluded that Comstock could "perform at least light work as he described
it at the hearing and probably medium work as he described in the record."
In light of Comstock's work activity from 1983 through 1986, combined with
the findings in his residual functional capacity assessments, we agree that
Comstock retained the ability to work as a gas station attendant.
The order is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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