Eller v. Social Security Administration

Filing 17

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing plaintiff's 2 complaint with prejudice. Signed by Magistrate Judge Beth Deere on 5/13/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
GARY ELLER

PLAINTIFF

V.

NO. 1:14CV34-BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Gary Douglas Eller has appealed the final decision of the Commissioner
of the Social Security Administration denying his claim for disability insurance benefits
and supplemental security income. Both parties have submitted appeal briefs and the case
is ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257
(8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered
evidence that detracts from the Commissioner’s decision as well as evidence that supports
it.

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#4)

The parties have consented to the jurisdiction of the Magistrate Judge. (Docket

Mr. Eller alleged that he became limited in his ability to work by chronic
obstructive pulmonary disease and hearing loss. (SSA record at 39-40, 70, 72) After
conducting a hearing, the Administrative Law Judge2 (ALJ) concluded that Mr. Eller had
not been under a disability within the meaning of the Social Security Act at any time
through March 8, 2013, the date of his decision. (Id. at 19) On February 24, 2014, the
Appeals Council denied the request for a review of the ALJ’s decision, making the ALJ’s
decision the final decision of the Commissioner. (Id. at 5-7) Mr. Eller then filed his
complaint initiating this appeal. (Docket #2)
Mr. Eller was 48 years old at the time of the hearing and lived with his wife. (SSA
record at 422) He is a high school graduate and had past relevant work as a dishwasher
and concrete finisher. (Id. at 18, 423) He stopped working because of absences from
work due to shortness of breath. (Id. at 227)
The ALJ found that Mr. Eller had not engaged in substantial gainful activity since
December 1, 2010, his alleged onset date. (Id. at 13) He found that Mr. Eller had
“severe” impairments: chronic obstructive pulmonary disease, peptic ulcer disease, and
bilateral hearing loss. (Id.) He further found that Mr. Eller did not have an impairment or
combination of impairments that met or equaled a Listing. (Id. at 13-14) He judged that
Mr. Eller’s allegations regarding the intensity, persistence, and limiting effects of his
symptoms were not totally credible. (Id. at 15-17)

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The Honorable Charles Daniel Stripling.
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Based on these findings, the ALJ concluded that Mr. Eller retained the residual
functional capacity for light work, except the work must not require fine hearing, and he
should avoid concentrated exposure to fumes, odors, dust, gases, and poor ventilation.
(Id. at 14-18)
Based on testimony from a vocational expert, the ALJ concluded that Mr. Eller
could not perform his past relevant work, but that he could perform other jobs that existed
in significant numbers in the national economy.3 (Id. at 18-19) Thus, the ALJ concluded
that Mr. Eller was not disabled. (Id. at 19)
Opinion Evidence
In his appeal of the ALJ’s decision, Mr. Eller argues the ALJ erred by failing to
address the residual functional capacity (“RFC”) assessment of Veryl D. Hodges, D.O.
(#12 at pp. 6-15)
Res judicata bars subsequent applications for disability insurance benefits and
supplemental security income based on the same facts and issues the Commissioner
previously found to be insufficient to prove the claimant was disabled. 20 C.F.R. §§
404.957(c)(1), 365 416.1457(c)(1)); see also Hillier v. Soc. Sec. Admin., 486 F.3d 359,
364-65 (8th Cir. 2007)(citing Robbins v. Sec'y of Health & Human Servs., 895 F.2d 1223,
1224 (8th Cir. 1990) (per curiam)). If res judicata applies, “the medical evidence from

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The vocational expert identified two jobs a person with Mr. Eller’s limitations
could perform – production assembler and cashier II. (Id. at 19)
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the initial proceeding cannot be subsequently reevaluated.” Id. (citing Bladow v. Apfel,
205 F.3d 356, 360 n. 7 (8th Cir. 2000)).
Here, Mr. Eller previously applied for benefits on June 5, 2008, alleging a
disability onset date of May 9, 2008. (SSA record at 79-85) The Commissioner denied
Mr. Eller’s first application at the initial and reconsideration levels, and, after a hearing,
the ALJ denied his claims in an opinion dated November 30, 2010. (Id. at 27-38, 41-43,
65)
In his opinion denying benefits, the ALJ discussed Dr. Hodges’s May 19, 2010
RFC assessment of Mr. Eller and rejected the opinion because it was inconsistent with the
objective medical evidence and other evidence in the record. (Id. at 34) The appeals
council denied review, and Mr. Eller did not appeal. (Id. at 20-22) The ALJ’s decision
became the Commissioner’s final decision. Consequently, res judicata applies to Dr.
Hodges’s opinion, and the ALJ in this case did not err by not discussing the opinion,
which could not be re-evaluated.
Residual Functional Capacity
Mr. Eller complains the ALJ erred by finding he was capable of a reduced range of
light work. 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); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).

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To evaluate Mr. Eller’s credibility, the ALJ followed the required two-step process
and considered the required factors.4 (SSA record at pp. 17-29) See Policy Interpretation
Ruling Titles II & XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual's Statements, SSR 96-7p (July 2, 1996). Thus, the question
before the court is whether substantial evidence supports the ALJ’s evaluation of Mr.
Eller’s credibility.
The ALJ may discount a claimant’s complaints of pain if they are inconsistent with
the evidence as a whole. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001);
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). Here, the ALJ acknowledged Mr.
Eller’s complaints of shortness of breath when performing activities such as lifting,
repetitive movement, walking, vacuuming, and carpentry. (SSA record at 15-16) The
ALJ found, however, that the medical records did not support the severe limitations
alleged by Mr. Eller. (Id. at 14-17) There is substantial evidence to support the ALJ’s
determination.
Bruce Randolph, M.D., performed a consultative examination on February 18,
2011. (Id. at 227-237) He administered a pulmonary function test and found that Mr.

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In considering the credibility of a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant’s prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant’s daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
aggravating factors; (d) dosage, effectiveness and side effects of medication; and
(e) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
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Eller had a force vital capacity of 3.74 pre-bronchodilator and 4.69 post-bronchodilator,
which was far better than the 1.55 required by the SSA to be disabling. Additionally, his
forced expiratory volume in one second was 1.87 pre-bronchodilator and 2.72 postbronchodilator, which was higher than the 1.35 required by the SSA to be disabling. (Id.
at 233-37) Dr. Randolph diagnosed chronic obstructive pulmonary disease, emphysema,
hearing deficit, and asthma, and found that Mr. Eller had moderate limitation in his ability
to stand, walk, lift, carry and hear. (Id. at 231)
Todd Rumans, M.D., performed an audiological consultative examination on June
7, 2011, and found that Mr. Eller had sensorineural hearing loss, asymmetrical and
tinnitus. (Id. at 290) He noted that Mr. Eller was a candidate for a hearing aid on the left
and should avoid situations that require normal hearing for safety.
The medical records reveal that during the two year period at issue in this case, Mr.
Eller sought treatment only once. See Ostronski v. Chater, 94 F.3d 413, 419 (8th
Cir.1996) (complaints of disabling pain and functional limitations are inconsistent with
the failure to take prescription pain medication or to seek regular medical treatment for
symptoms). In May, 2011, Mr. Eller was admitted to White River Medical Center where
he was treated for gastroesophageal problems. David Boile, M.D., performed a
consultative examination and noted that Mr. Eller’s breath sounds were severely
decreased, but he suspected gastrointestinal problems as the cause for Mr. Eller’s
complaints. (Id. at 259) An endoscopy revealed a histal hernia, but Mr. Eller’s

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esophagus, GE junction, stomach and duodenum were normal. (Id. at 263-65) His
discharge diagnosis was histal hernia, GERD, chest pain, and high cholesterol. (Id. at
274)
The ALJ noted Alice Davidson, M.D.’s RFC assessment finding that Mr. Eller
retained the ability to perform medium work with limitations on exposure to fumes,
odors, dusts, gasses; to work sites with poor ventilation, and from jobs requiring excellent
hearing. (Id. at 18, 296-303) But he rejected the opinion because the record had been
supplemented with testimony and additional medical evidence after she performed her
evaluation. (Id. at 18)
In addition to the medical evidence, the ALJ also properly evaluated Mr. Eller’s
activities of daily living. Mr. Eller reported being able to prepare complete meals several
times a week, to do some cleaning, but not vacuuming or mopping; to make home repairs
and move furniture; to shop three-to-four times a month; to handle his finances; to go to
yard sales with a friend; to use a computer; to work in a wood shop and on vehicles; to
help his disabled wife, and to help care for his wife’s grandmother. (Id. at 17, 103-110,
429-31)
There is substantial evidence in the record as a whole to support the ALJ’s RFC
determination.

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Hypothetical
Finally, Mr. Eller complains that the ALJ’s hypothetical to the vocational expert
did not encompass his breathing problems and hearing loss. “The hypothetical question
must capture the concrete consequences of the claimant’s deficiencies. However, the ALJ
may exclude any alleged impairments . . . properly rejected as untrue or unsubstantiated.”
Perkins v. Astrue, 648 F.3d 892, 901–02 (8th Cir. 2011); see also Lacroix v. Barnhart,
465 F.3d 881, 889–90 (8th Cir. 2006) (“[T]he hypothetical question need not frame the
claimant’s impairments in the specific diagnostic terms used in medical reports, but
instead should capture the ‘concrete consequences’ of those impairments.”).
Here, the ALJ questioned a vocational expert about the availability of work for a
person who could perform light work but could not perform a job where fine hearing is
required and the individual must avoid concentrated exposure to fumes, odors, dust,
gases, and poor ventilation. (SSA record at 436-37) Because these limitations captured
the concrete consequences of Mr. Eller’s impairments, the ALJ’s question was proper.
The vocational expert found that Mr. Eller could perform work available in the national
economy. (Id. at 437) Because such work existed, Mr. Eller was not disabled under
social security disability law.

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Conclusion
There is ample evidence on the record as a whole that “a reasonable mind might
accept as adequate to support [the] conclusion” of the ALJ in this case. Richardson v.
Perales, 402 U.S. at 401. The Commissioner’s decision is not based on legal error.
The final determination of the Commissioner is AFFIRMED, and Mr. Eller’s
complaint is hereby dismissed with prejudice.
IT IS SO ORDERED this 13th day of May, 2015.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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