Kunkel v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER finding that the ALJ did not commit legal error and that his findings are supported by substantial evidence of record; therefore, this case is dismissed with prejudice; judgment will be entered accordingly. Signed by Magistrate Judge Jerry W. Cavaneau on 3/22/12. (vjt) (Modified on 3/22/2012 to correct typographical error).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION

MICHAEL LYNN KUNKEL
V.

PLAINTIFF
NO. 1:10-CV-0085-JWC

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff, Michael Lynn Kunkel, seeks judicial review of his claim for
disability insurance benefits. 1 Judicial review of the Commissioner's denial of
benefits examines whether the decision is based on legal error and whether the
findings of fact are supported by substantial evidence in the record as a whole.
Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009); see 42 U.S.C. §§ 405(g),
1383(c)(3). Substantial evidence is "less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion." Wiese, 552
F.3d at 730. In its review, the Court must consider evidence supporting the
Commissioner's decision as well as evidence detracting from it. Id. That the Court
would have reached a different conclusion is not a sufficient basis for reversal;
rather, if it is possible to draw two inconsistent conclusions from the evidence and

1

The parties have consented to the Magistrate Judge’s jurisdiction. (doc. 4)

one of these conclusions represents the Commissioner's findings, the denial of
benefits must be affirmed. Id.
An Administrative Law Judge (ALJ) held a hearing on March 2, 2010, and
rendered an unfavorable opinion on June 21, 2010. The Appeals Council denied
Plaintiff’s request for review on September 22, 2010, rendering the ALJ’s opinion
the final opinion of the Commissioner.
Plaintiff was forty-three years of age at the time of the ALJ’s decision. He
had a Bachelor’s of Science degree in nursing and past relevant work as a
registered nurse, charge nurse and construction tile layer. His application for
Disability Insurance Benefits alleged disability due to hearing loss, osteoarthritis,
headaches, Lymes disease, residuals from being shot in 1996, tinnitus and kidney
failure. The relevant time period for evaluating his claim is from February 26,
2007, the amended onset date, through June 21, 2010, the date of the ALJ’s
decision.
To evaluate Plaintiff's claim, the ALJ followed the five-step sequential
process. See 20 C.F.R. §§ 404.1520; see also , 482 U.S. 137, 140-42 (1987). At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. At step two, he found the medical evidence
established that Plaintiff suffered from the following severe impairments: bilateral
sensorial hearing loss, headaches and osteoarthritis. At step three, the ALJ

determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the listings). At step four, he evaluated
Plaintiff’s credibility, finding that his subjective complaints were not fully
credible. He discussed in detail all of Plaintiff’s complaints, including those added
after the initial application, and concluded that Plaintiff had the Residual
Functional Capacity (RFC) to perform a full range of light work activity, which
involves lifting no more than twenty pounds at a time with frequent lifting or
carrying objects weighing up to ten pounds. He did impose the restriction that
Plaintiff must work in a controlled environment in which he is not exposed to loud
noises. The ALJ further found that Plaintiff was unable to perform his past
relevant work and thus continued to step five of the analysis. He considered the
testimony of the Vocational Expert (VE) who was present at the hearing, finding
that other jobs exist in the national economy that Plaintiff could be expected to
perform, considering his age education, past work experience and FRC. Examples
would include a light office nurse position, school nurse, general desk clerk, motel
desk clerk, dispatcher, data entry clerk and admission clerk. Therefore, at step
five, the ALJ found the Plaintiff not disabled.
Plaintiff makes three arguments: the ALJ’s finding that Plaintiff did not meet
a listing is unsupported by substantial evidence; the ALJ erred in not further

developing the record as to Plaintiff’s breathing difficulties; and the ALJ’s
assessment of Plaintiff’s RFC is inadequate because he failed to sufficiently state
the medical basis for his findings.
THE LISTINGS ARGUMENT
Plaintiff makes no specific argument on this point, merely stating that
“Plaintiff does have a combination of impairments equal to a listing (20 C.F.R. §
404.1501 et. seq., Appendix 1),” without further elaboration. 2 Later, he says that
the ALJ’s finding is not supported by substantial evidence, again without
elaboration. 3 Plaintiff fails even to state what listing he contends he meets, let
alone to make an argument based on the medical evidence and applicable law why
he contends Plaintiff meets a listing. Presenting the point in such a perfunctory
way is not sufficient and constitutes a waiver. Rotskoff v. Cooley, 438 F.3d 852,
854-55 (8th Cir. 2006) (issue deemed abandoned when not developed in brief);
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand
conclusory assertion that ALJ failed to consider whether claimant met Listings
2
3

Plf’s brief, p. 6.

Plf’s brief, pp. 7-8. The entirety of his argument is, “ Furthermore, at the
third step, the ALJ held the Plaintiff did not suffer an impairment or combination
of impairments that meets or medically equals one of the listed impairments in
Appendix 1 of the Regulations.” “This finding is not supported by substantial
evidence. Plaintiff has more than one impairment, and the symptoms, signs and
findings for the impairment are to be considered in combination to determine if
Plaintiff meets a listed impairment.”

because claimant provided no analysis of relevant law or facts regarding Listings).
The ALJ’s opinion discusses all of Plaintiff’s alleged impairments, including
those he did not find to be “severe” at step two of his analysis. He specifically
finds Plaintiff not to have an impairment “or combination of impairments” equal to
a listing. Plaintiff has submitted nothing to refute this finding, and the Court, in
reviewing the medical evidence, finds no basis for saying that this determination
lacks a substantial basis in the evidence.
ALLEGED FAILURE TO DEVELOP THE RECORD
Plaintiff’s argument on this point centers on his alleged breathing problems.
He states that the ALJ “chose to ignore the severe breathing issues for which the
Plaintiff has received treatment for (sic) over the years.” He argues that because
the ALJ obviously found the medical evidence regarding breathing problems to be
inadequate, he should have further developed the record by attempting to clarify
the medical situation regarding these problems. He says the case should be
remanded so this can be done.
The ALJ did not ignore the alleged breathing problems. He discussed them
in some detail, beginning with an accidental gunshot wound to the chest suffered
by Plaintiff in 1996. The ALJ noted the lack of objective evidence and the lack of
aggressive treatment as part of the basis for his finding that the problem was not
severe. The issue is whether the records do sufficiently support this conclusion.

Plaintiff is correct that the ALJ is under a duty, where a crucial issue is
undeveloped or underdeveloped, to further augment the record, even where a
claimant is represented by counsel. However, this duty does not arise if the
existing medical records provide sufficient evidence on which to base a finding.
Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010) (ALJ must order medical
examinations and tests only if records presented do not provide sufficient evidence
to determine whether claimant is disabled). Plaintiff states that if the ALJ
questions the veracity of the medical provider’s treatment, he must make an
attempt to clarify the record. The problem with that argument is that the ALJ here
did not question the validity of the treatment afforded, but rather concluded from
the lack of additional testing and aggressive treatment, among other things, that the
treating doctor did not consider the complaints of shortness of breath to be serious
enough to warrant more medical attention.
First, it does not appear that Plaintiff suffers significant residual effects from
his accidental gunshot wound in 1996. He was admitted to the hospital with a
gunshot wound to his right chest on May 1, 1996. Physicians inserted a chest tube
to remove blood. This was taken out during his hospital stay. He remained stable
and was discharged May 7, 1996, with the diagnosis of probable pulmonary
contusion involving the right mid to lower lung field. The discharge summary
showed that his hospital course was uncomplicated, and that he was without any

shortness of breath. 4 Plaintiff saw Dr. David Kauffman, M.D., for various
complaints during the next several years and the observation sections of the
various doctor’s entries consistently show the lungs to be clear. Aside from visits
where Plaintiff had a cold or other acute respiratory problems, there do not appear
to be entries showing any lung problems. 5 There is a notation dated August 22,
2006, showing that Plaintiff presented with complaints of chronic head congestion
and productive cough, and including the observation that scattered rales and
wheezing were present. The note also indicates that Plaintiff was smoking at the
time. It appears his condition was an acute problem because the next entry, dated
September 14, 2006, notes that the lungs were clear. 6 They were also noted to be
clear on May 15, 2007, and May 28, 2008. 7 As the ALJ noted in his opinion,
Plaintiff’s alleged onset date is February 26, 2011, some ten to eleven years after
the gunshot wound. His finding that there are no significant residuals from that
wound is certainly supported by evidence of record.
As also noted by the ALJ, Plaintiff first complained of shortness of breath
after he filed his claim for disability on August 26, 2008. On September 18, 2008,
4

TR. 171-182.

5

See Dr. Kauffman’s treatment notes dating from March 19, 2002, to May 7,
2009. Exhibit 8F. TR 255-309.
6

TR. 266.

7

TR. 229-230.

Plaintiff presented with a complaint of shortness of breath and production of dark
blood, among other things, including a weight gain of twenty pounds. Dr.
Kauffman’s notes do not reflect that he observed dark blood but do state that there
were no rales or (undecipherable) in the lungs. 8 On September 25, 2008, Plaintiff
continued to complain of shortness of breath on exertion, 9 but on November 26,
2008, there was no complaint of shortness of breath and his lungs were noted to be
clear. 10 Plaintiff again complained of shortness of breath on the left side on
January 20, 2009, and the doctor’s notation was wheezing greater on the left than
the right. 11 Plaintiff’s lungs were noted as clear on February 3, 2009, and April 7,
2009, even though he complained of shortness of breath and wheezing.12 There is
nothing in these records which indicates a serious or severe, chronic lung condition
and nothing sufficient to trigger a requirement that the ALJ further develop
evidence concerning any lung problems. His conclusion that a lung impairment
has not been established by objective medical evidence is supported by substantial
evidence.
8

TR. 263.

9

TR. 262. The note here does not contain a reference to whether there were
objective symptoms.
10

TR. 261.

11

TR. 260.

12

TR. 258-259.

THE RFC DETERMINATION
In his argument assailing the ALJ’s Residual Functional Capacity (RFC)
assessment, Plaintiff quotes his testimony at the administrative hearing concerning
his bilateral hearing loss, which testimony indicates that his hearing problem is
actually one of over-amplification. He also refers to a letter written by Dr. Terry
Burns indicating the degree and type of hearing loss. He makes the statement that
these findings essentially mean he is unable to work in a noisy environment such as
an emergency department or ICU. It is unclear how this all bears on the question of
adequacy of the RFC determination. The ALJ specifically found that Plaintiff
could not return to his former work in nursing, as he had been performing it and he
expressly added the proviso to his determination that Plaintiff “must also work in a
controlled environment in which he is not exposed to loud noises.” 13 The ALJ
noted that Plaintiff was able, during the administrative hearing, to clearly
understand conversational speech without any difficulty. Plaintiff’s hearing loss
would not prevent him from performing those jobs existing in the national
economy which he found Plaintiff could perform.
Plaintiff also argues that the ALJ did not sufficiently articulate his medical
basis for the RFC determination. The ALJ extensively and exhaustively evaluated
all the medical evidence for each condition alleged and stated why he did not find
13

TR. 19.

them disabling. He did discount the extent of limitations stated by Dr. Kauffman,
14

but stated adequate reasons for doing so, which Plaintiff has not challenged.

Nor has Plaintiff attacked the ALJ’s credibility determination, which the Court
finds to be supported by substantial evidence. The ALJ did refer to the findings of
agency physicians, who felt that Plaintiff could perform light work. Given the
thorough discussion of the medical evidence, the restrictions which take into
account Plaintiff’s hearing problem, and the lack of objective evidence of any
disabling condition or combination of conditions, this Court cannot say that the
RFC determination is unsupported by substantial evidence.
CONCLUSION
The Court finds that the ALJ did not commit legal error and that his findings
are supported by substantial evidence of record. This case is therefore dismissed
with prejudice.
IT IS SO ORDERED this 22nd day of March, 2012.
___________________________________
UNITED STATES MAGISTRATE JUDGE

14

TR 255.