Joanne M. Long v. Shirley S. Chater

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No. 96-2048
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Joanne M. Long, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Shirley S. Chater, Commissioner *
of the Social Security *
Administration, *
*
Appellee. *

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Submitted: December 13, 1996

Filed: March 6, 1997
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Before McMILLIAN and MAGILL, Circuit Judges, and WEBBER,1 District Judge.
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MAGILL, Circuit Judge.

Joanne M. Long appeals the decision of the Social Security
Commissioner (Commissioner) denying her Social Security benefits. Long
argues that the Commissioner's decision is not supported by substantial
evidence because (1) the administrative law judge (ALJ) erred by rejecting
Long’s subjective complaints and (2) the Commissioner has not met her
burden of proof to show that Long can perform jobs that exist in
significant numbers in the national economy. We affirm.

1
THE HONORABLE E. RICHARD WEBBER, United States District Judge
for the Eastern District of Missouri, sitting by designation.
I.

Long was born on October 7, 1950. She has a high school equivalency
degree and one year of college education. She was a drafting major at a
community college and she has been on the Dean's list at least twice. In
the past, Long has worked as a waste treatment plant attendant, fast-food
worker, punch press operator, and printer. She has a verbal IQ of 91, a
performance IQ of 117, and a full scale IQ of 96. Long is five feet and
two inches tall, and she weighs approximately 200 pounds.

Long filed her application for Social Security disability insurance
benefits, pursuant to Title II of the Social Security Act, 42 U.S.C.
§§ 401-433 (1988) (Title II), on September 28, 1990. She alleged that she
has been unable to work since May 1, 1986, because of depression and
anxiety, headaches, neck pain, and back pain. The Commissioner denied her
application.

Long appealed the Commissioner's decision to the district court,2
which remanded Long's case to the Social Security Administration for
further proceedings. After a supplemental hearing before an ALJ, Long's
request for benefits was again denied because, discounting Long's
subjective complaints, the ALJ found that Long could perform jobs that
exist in significant numbers in the national economy. In making this
finding, the ALJ relied on the testimony of a vocational expert. The
vocational expert testified that Long could work as a surveillance monitor,
addresser, or document preparer, and that there are approximately 650 such
jobs in Iowa and 30,000 such jobs nationwide. On appeal, the district
court affirmed the ALJ's decision to deny disability benefits.

2
The Honorable Charles R. Wolle, United States District Judge
for the Southern District of Iowa.

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II.

We will uphold the Commissioner's decision to deny an applicant
disability benefits if the decision is not based on legal error and if
there is substantial evidence in the record as a whole to support the
conclusion that the claimant was not disabled. See Clark v. Chater, 75
F.3d 414, 416 (8th Cir. 1996); see also 42 U.S.C. § 405(g) (1994).
Substantial evidence exists if a reasonable mind would deem the evidence
adequate to support the conclusion. Clark, 75 F.3d at 416. While this
Court will consider evidence that detracts from the Commissioner's decision
as well as evidence that supports the decision, we will not reverse "merely
because substantial evidence exists for the opposite decision." Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996).

To be eligible for disability insurance benefits under Title II, an
individual must meet Title II's "earning requirement." 42 U.S.C.
§§ 416(i)(3)(B), 423(c)(1)(B). Long last met this requirement on December
31, 1991. When an individual is no longer insured for Title II disability
purposes, we will only consider an individual's medical condition as of the
date she was last insured. See, e.g., Bastian v. Schweiker, 712 F.2d 1278,
1280 (8th Cir. 1983).

Long argues that the ALJ improperly discounted her subjective
complaints of disabling difficulties in reading and writing, disabling
depression and anxiety, and disabling headaches, neck pain, and back pain.
In Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984) (subsequent history
omitted), we explained that:

The adjudicator must give full consideration to all of the
evidence presented relating to subjective complaints, including
the claimant's prior work record, and observations by third
parties and treating and examining

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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;
5. functional restrictions.

Id. at 948. Using the Polaski factors, the ALJ delineated at length the
reasons why Long's subjective complaints had to be rejected. We agree with
the ALJ's conclusion.

Long's complaints of disabling difficulties in reading and writing
are contradicted by her academic accomplishments and the daily activities
that led to their achievement. Although testing has indicated that Long
reads at a ninth-grade level, she has attained her high school equivalency
degree and is currently enrolled as a drafting major at a community
college. While she sometimes takes as few as three credits per semester,
she has taken as many as eight. Despite her frequent reliance on special
services such as extra tutoring and having her books read onto tape, Long
has made the Dean's list at her community college on at least two
occasions.

With respect to Long's mental health complaints, she has been seen
at the Vera French Community Mental Health Center (MHC) since July 1986.
Her use of the therapy services provided by this facility has varied from
sporadic to consistent. The MHC psychiatrist who monitored Long's progress
starting in October 1988, Dr. Alice J. Harpring, indicated in her reports
that Long has suffered from some mental health setbacks. However, Long
herself has reported that taking the medication prozac has helped her.
Finally, Dr. Harpring's assessments reflect that overall Long has done well
under treatment.

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Long has only infrequently sought treatment for her physical health
complaints. For example, she has sought the help of a chiropractor on
occasion and she has taken nonsteroidal, anti-inflammatory medication on
an as-needed basis. She has testified to taking this medication very
infrequently and could not be sure of the last time that she had taken it.
We have noted that an individual's complaints of "functional limitations
are inconsistent with her failure to take prescription pain medication or
to seek regular medical treatment for her symptoms." Ostronski v. Chater,
94 F.3d 413, 419 (8th Cir. 1996).

Having considered these facts as well as the record as a whole, we
hold that there is substantial evidence to support the ALJ's decision to
reject Long's subjective complaints. We acknowledge that some evidence
exists for the opposite conclusion; however, we hold that substantial
evidence exists to support the ALJ's conclusion in the form of academic
achievements, improving mental health assessments, and infrequent use of
pain medication.

Long argues that the Commissioner did not show that there are other
jobs available in significant numbers in the national economy that Long can
perform. We disagree.

The Commissioner can rely on the testimony of a vocational expert to
carry her burden of proof of showing that jobs exist in the national
economy that a claimant can perform. See Evans v. Shalala, 21 F.3d 832,
835 (8th Cir. 1994). To do this, the Commissioner may pose hypothetical
questions to the vocational expert, the parameters of which do not have to
include any alleged impairments that the ALJ has rejected as untrue. See
House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994).

To decide whether jobs exist in significant numbers, we

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consider, inter alia, the reliability of the claimant's and the vocational
expert's testimony. Ultimately, however, we leave this determination "'to
the trial judge's common sense in weighing the statutory language as
applied to a particular claimant's factual situation.'" Jenkins v. Bowen,
861 F.2d 1083, 1087 (8th Cir. 1988) (quoting Hall v. Bowen, 837 F.2d 272,
275 (6th Cir. 1988)). Here, the vocational expert testified that Long is
capable of performing any of the approximately 650 jobs in the fields of
surveillance monitoring, addressing, and document preparation that exist
in Iowa, or one of the 30,000 such jobs that exists nationwide. The ALJ
found this to be a significant number, and we agree.

Long argues that the vocational expert's testimony was insufficient
because he used phrases that were equivocal. For example, at one point the
vocational expert said that there were "probably . . . about 400 statewide
[jobs]" for administrative support personnel and that "I think you'd be
looking at the possibility of someone doing surveillance monitor work."
Admin. R. at 387, reprinted in Appellant's Br. at 31. Having reviewed the
vocational expert's testimony in its entirety, we are convinced that this
language does not indicate that the expert was hedging or giving qualified
responses. Taken in context, these phrases merely demonstrate that the
vocational expert was aware that he was responding to hypothetical
questions with expert opinions. Thus, by relying on the vocational
expert's testimony, the Commissioner met her burden of showing that Long
is not disabled.

III.

For the reasons discussed above, we affirm.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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