Yarbrough v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER affirming the final decision of the Commissioner and dismissing Plaintiff's Complaint with prejudice. Signed by Magistrate Judge J. Thomas Ray on 3/13/12. (hph)

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

DEBRA YARBROUGH
V.

PLAINTIFF
NO. 2:11CV00041 JTR

MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff, Debra Yarbrough, has appealed the final decision of the
Commissioner of the Social Security Administration denying her claim for Disability
Insurance Benefits (DIB). Both parties have filed Appeal Briefs (docket entries #10,
#11), and the issues are now joined and ready for disposition.
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. 42 U.S.C. § 405(g); Wildman v. Astrue,
596 F.3d 959, 963 (8th Cir. 2010). 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). In its review, the Court should consider evidence

supporting the Commissioner’s decision as well as evidence detracting from it.
Wildman, 596 F.3d at 964. However, a decision will not be reversed merely because
substantial evidence would have also supported a contrary outcome, or because the
Court would have reached a different conclusion. Id.
On October 16, 2007, Plaintiff protectively filed an application for DIB,
alleging an onset date of October 16, 2004. (Tr. 91-93, 113.) She said she was unable
to work due to problems with her feet, heart, stomach, thyroid and hands, as well as
diabetes and arthritis. She reported: difficulty walking or standing for long periods;
inability to wear shoes; difficulty bending and lifting; difficulty using her hands; a
rapid heart rate, weakness and fatigue; and constantly being sick to her stomach. She
said she was 5'3" and weighed 216 pounds. (Tr. 103-04.) Plaintiff was forty-three
years old at the time of her alleged disability onset, had completed eleventh grade and
CNA (certified nursing assistant) training, and had past work as a cashier, a CNA, a
machine operator, a factory worker, and a babysitter. (Tr. 105, 111, 113, 117.)
After Plaintiff’s claims were denied at the initial and reconsideration levels, she
requested a hearing before an Administrative Law Judge (ALJ). On January 6, 2010,
the ALJ conducted a hearing at which Plaintiff testified. (Tr. 28-38.)

The ALJ considered Plaintiff’s impairments by way of the familiar five-step
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sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) &
(b). If the claimant is, benefits are denied, regardless of medical condition, age,
education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. §§ 404.1520(a)(4)(ii) & (c). If not, benefits are denied. Id.
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. §§ 404.1520(a)(4)(iii) & (d). If so, and the duration
requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient residual
functional capacity (RFC), despite the impairment(s), to perform the physical and
mental demands of past relevant work. Id. §§ 404.1520(a)(4)(iv) & (f). If so, benefits
are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given the claimant’s RFC, age, education and work
experience. Id. §§ 404.1520(a)(4)(v) & (g). If so, benefits are denied; if not, benefits
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are awarded. Id.
In his January 29, 2010 decision (Tr. 9-17), the ALJ found that Plaintiff: (1) had
not engaged in substantial gainful activity from October 16, 2004, her alleged onset
date, through December 31, 2009, her date last insured;1 (2) had “severe” impairments
of diabetes mellitus type II, hypertension, hypothyroidism, gastroparesis, and mild
degenerative changes in both hips, with “non-severe” impairments of anxiety and
depression; (3) did not have an impairment or combination of impairments that met
or equaled a listed impairment; (4) had the RFC to perform the full range of sedentary
work;2 (5) was not fully credible regarding the intensity, persistence and limiting
effects of her symptoms; and (6) was unable to perform her past relevant work; but
(7) after consulting the Medical-Vocational Guidelines3 and considering Plaintiff’s
age (younger), education (limited), work experience and RFC, she was able to perform
other jobs that exist in significant numbers in the national economy. Thus, the ALJ
concluded that Plaintiff was not disabled during the relevant time period.

1

To qualify for disability insurance benefits, an applicant must establish that he or
she was disabled before expiration of his or her insured status. See 42 U.S.C. § 416(i)
(defining the terms “disability” and “period of disability”); § 423(a) (describing who is
entitled to disability insurance benefits); Dipple v. Astrue, 601 F.3d 833, 834 (8th Cir.
2010).
2

See 20 C.F.R. § 404.1567(a) (sedentary work requirements).

3

See 20 C.F.R. § 404.1569; 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 201.19.
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The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby making it the final decision of the Commissioner. (Tr. 1-3.)
Plaintiff then appealed the denial of benefits to this Court (docket entry #2).

II. Analysis
Plaintiff argues that the ALJ erred: (1) in failing to find that she met the
requirements of a listing-level impairment due to her physical impairments when
combined with the effects of her obesity; (2) in failing to consider the additional and
cumulative effects of her obesity when assessing her RFC; and (3) in concluding that
she retained the RFC to perform the exertional demands of sedentary work without
obtaining testimony from a vocational expert. For the reasons discussed below, the
Court concludes that Plaintiff’s arguments are without merit.
A.

Evaluation of Obesity.

An ALJ is required to consider the effects of obesity at all steps of the
sequential evaluation process, alone and in combination with other impairments. SSR
02-01p, 2000 WL 628049, at *1, *3-*7 (Sept. 12, 2002). When an ALJ specifically
references the claimant’s obesity in his decision, such review may be sufficient to
avoid reversal. Heino v. Astrue, 578 F.3d 873, 881-82 (8th Cir. 2009). Moreover,
adequate consideration of obesity can be shown where the ALJ adopts an opinion of
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a doctor who is aware of and has considered the claimant’s obesity. Partee v. Astrue,
638 F.3d 860, 863 (8th Cir. 2011).
The ALJ’s decision in this case shows that he considered the evidence of
Plaintiff’s obesity, properly evaluated that evidence, and took it into account in
determining whether she met the criteria of a listing and in formulating her RFC.
In summarizing the medical evidence, the ALJ noted Plaintiff’s hearing
testimony that she weighs 200-215 pounds and is five feet three inches tall. (Tr. 13,
33.) He noted her diagnosis of morbid obesity in October 2005, when her weight was
220. (Tr. 14, 205.) He then stated:
The medical records suggest the claimant is obese. The medical
record indicates that the claimant weighs 215 pounds, and has a height
of 63". This would give her a Body Mass Index (BMI) of approximately
38. BMI is a measure of an individual’s obesity. Indexes over 29 are
considered to be in the obese range. An individual may have limitations
in any of the exertional functions, postural functions, in her ability to
manipulate objects, or to tolerate extreme heat, humidity, or hazards
because of obesity. “[T]he combined effects of obesity with other
impairments can be greater than the effects of each of the impairments
considered separately.” (SSR 02-01p.) The effects of the claimant’s
obesity have been considered when determining a residual functional
capacity for the claimant.
(Tr. 15.)
The ALJ also stated that he was affording “significant weight” to the physical
RFC assessment of a state agency medical consultant, Ronald M. Crow, D.O., dated
January 28, 2008 (Tr. 15, 39, 375-82), as affirmed on review by Lucy Sauer, M.D.
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(Tr. 40, 383-86). To support his RFC findings, Dr. Crow referred to specific medical
evidence relevant to obesity (Tr. 382), including: (1) Plaintiff’s March 5, 2004 weight
of 244 pounds at a checkup (Tr. 163); (2) clinical note from October 2005, showing
a weight of 220 pounds and a diagnosis of morbid obesity (Tr. 205); (3) her March 5,
2007 weight of 230 pounds (Tr. 177); (4) her November 6, 2007 weight of 215 pounds
and 38.08 BMI (Tr. 197); and (5) her November 21, 2007 weight of 215 pounds (Tr.
352-53). Dr. Sauer referred to additional medical records, noting that Plaintiff’s
weight was 215 at a January 18, 2008 office visit. (Tr. 358.)
The ALJ expressly cited the ruling which governs the evaluation of claims of
obesity (Tr. 15), which requires consideration of the “the combined effects of obesity
with other impairments.” SSR 02-01p, supra at *1. The ALJ also correctly stated that
he had to consider, at step three of the sequential process, whether Plaintiff's
impairment or "combination of impairments" meets or medically equals the criteria
of a listing. (Tr. 10.) He summarized the evidence of her alleged impairments,
including obesity. (Tr. 13-15.) He explicitly found that Plaintiff did “not have an
impairment or combination of impairments" that met or medically equaled all the
criteria of a listed impairment. (Tr. 13.)
This record is sufficient to demonstrate that, in determining whether Plaintiff
met the relevant listings, the ALJ considered the combined effect of Plaintiff's
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impairments – including her obesity – as required by the regulations and SSR 02-01p.
See 20 C.F.R. §§ 404.1523, 404.1526(b)(3); Martise v. Astrue, 641 F.3d 909, 924 (8th
Cir. 2011) (ALJ properly considered combined effect of claimant’s impairments
where he summarized medical evidence, separately discussed each alleged
impairment, and expressly found that claimant did not have impairment or
combination of impairments equaling listing-level impairment).
Furthermore, the ALJ’s decision expressly states that he considered the effects
of Plaintiff’s obesity in formulating the physical RFC assessment, and he relies on the
specific RFC findings of Drs. Crow and Sauer, who made numerous references to
Plaintiff’s obesity. (Tr. 15.) The ALJ also correctly stated that, in determining RFC,
he was required to consider “all of the claimant’s impairments, including impairments
that are not severe.” (Tr. 10.) See 20 C.F.R. § 404.1545(a)(2).
Thus, the ALJ adequately considered Plaintiff’s obesity and accounted for any
related functional limitations by limiting the RFC to sedentary work.
B.

Step Five Determination.

At step five of the sequential analysis, the Commissioner bears the burden of
showing that jobs exist in significant numbers which a person with the claimant’s RFC
can perform. 20 C.F.R. § 404.1560(c)(2). This burden can be satisfied by reference
to the Medical-Vocational Guidelines, which are fact-based generalizations about the
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availability of jobs for people of varying ages, educational backgrounds, and previous
work experiences with differing degrees of exertional impairments. Fenton v. Apfel,
149 F.3d 907, 910 (8th Cir. 1998).
Generally, where the claimant suffers from a nonexertional impairment such as
pain, the ALJ must obtain the opinion of a vocational expert instead of relying on the
Guidelines. Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006). However, the
Guidelines still may be used where the nonexertional impairment does not “diminish
or significantly limit the claimant’s residual functional capacity to perform the full
range of Guideline-listed activities.” Id. In particular, when a claimant’s subjective
complaints are “explicitly discredited for legally sufficient reasons articulated by the
ALJ,” the Commissioner’s burden at the fifth step may be met by use of the
Guidelines. Id. at 894-95. An ALJ may discount a claimant’s subjective allegations
if they are inconsistent with the record as a whole. Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984); see 20 C.F.R. § 404.1529(c) (listing factors to consider);4 SSR
96-7p, 1996 WL 374186 (July 2, 1996) (considerations in assessing credibility of

4

As stated in this regulation, the ALJ is required to consider, in addition to the
objective medical evidence and the claimant’s prior work record, statements and
observations made by the claimant, his or her medical providers and any others regarding
(1) the claimant’s daily activities, (2) the location, duration, frequency and intensity of
pain or other symptoms, (3) precipitating and aggravating factors, (4) type, dosage,
effectiveness and side effects of medications, (5) non-medication treatments or other
measures taken to alleviate pain and symptoms, and (6) functional limitations.
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claimant’s statements regarding symptoms).
In making his step-five determination, the ALJ stated, “If the claimant can
perform all or substantially all of the exertional demands at a given level of exertion,
the medical-vocational rules direct a conclusion of either ‘disabled’ or ‘not disabled’
depending upon the claimant’s specific vocational profile.” (Tr. 16.) He went on to
find that Plaintiff was capable of performing the “full range” of sedentary work and,
considering her age, education and work experience, a finding of “not disabled” was
thus directed by Medical-Vocational Rule 201.19. (Tr. 16.)
Plaintiff asserts that the ALJ should have called a vocational expert to testify,
rather than relying on the Guidelines, because her occupational abilities were eroded
due to nonexertional limitations, including: fatigue, dizziness and “numerous falls”
due to fluctuations with her blood sugar (Tr. 32, 35-36); pain in her feet, legs, back
and hips (Tr. 35-36); and tingling, numbness and sores on her feet (Tr. 232).
In his decision, the ALJ noted Plaintiff’s testimony that: (1) her doctors were
trying to get her sugar under control but it had not been under control for fifteen years;
(2) she was always tired, falls a lot, and gets dizzy; (3) her diabetes has “caused ...
damage” to her feet and stomach; (4) she has pain in her feet and legs and can hardly
stand and walk; (5) her blood sugar fluctuates drastically; and (6) she has extreme
fatigue “just about every day,” lies down three times a day, and spends four to five
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hours in bed during the day. (Tr. 13-14, 32-37.)
The ALJ stated that he had considered Plaintiff’s subjective allegations in light
of “the entire case record,” including the objective medical evidence, and in
accordance with § 404.1529 and SSR 96-7p. (Tr. 13.) He expressly found that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her
symptoms were “not credible” to the extent they were inconsistent with his RFC
assessment. (Tr. 14.) However, by limiting her to sedentary work, the ALJ accounted
for significant limitation due to any functional difficulties.
In support of his credibility determination, the ALJ pointed to the following
evidence:
•

Medical records showing that Plaintiff had received conservative
treatment and medication for her diabetes from at least 2003, with
diabetic checkups and lab work, through October 2009. (Tr. 14-15, 16369, 193-96, 205-18, 228-32, 352-54, 358-59, 363-65, 509-11.)

•

Medical evidence that, despite self-reports that she was unable to control
her diabetes, Plaintiff did not want to go to UAMS for treatment in
November 2007. (Tr. 14, 352.)

•

Plaintiff’s reports of hip and leg pain, but medical findings on November
6, 2007 of normal strength, no lumbar tenderness and no edema in
extremities (Tr. 14, 243-44), and in November 2009 of ambulating
without difficulty, steady gait, adequate joint function and no reports of
falls within the last twelve months (Tr. 14, 539-40).

•

X-rays on November 9, 2007, showing mild degenerative changes in the
hips. (Tr. 14, 350.)
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•

A March 1, 2007 report of a “benign” Holter monitor study showing
normal sinus rhythm, occasional PACs and PVCs without sustained
tachyarrhythmia, no AV block, no pauses, and no bradycardia. (Tr. 15,
176, 179-80.)

•

Following a cardiac work-up, a March 5, 2007 report from Plaintiff’s
cardiologist that her EKG demonstrated normal sinus rhythm at a rate of
99 beats per minute, but some ECG abnormalities and non-specific ST-T
wave abnormalities. (Tr. 15, 177, 181.)

•

Plaintiff’s decision at that time to “choose intervention with
pharmacologic nature” rather than undergo electrophysiologic
evaluation. (Tr. 15, 177.)

•

April 2007 progress notes from her cardiologist that Plaintiff was
tolerating her medication “quite well” and that much of her symptoms
had abated, with no “extended” periods of SVT (supraventricular
tachycardia). (Tr. 15, 170-72.)

•

Plaintiff’s April 2007 decision to continue with medication for her
cardiac symptoms, rather than pursue ablation therapy. (Tr. 15, 171.)

•

A normal transthoracic echocardiogram (ECG) in December 2009 at
UAMS. (Tr. 15, 532-33.)

•

Plaintiff’s receiving “ongoing and continual” prescription medications
indicating “conservative treatment.” (Tr. 15, 490, 518)

•

The state agency medical expert opinions that Plaintiff was capable of
working at the medium exertional level. (Tr. 15, 375-86).

The ALJ’s decision also noted Plaintiff had no problems with personal care
except for getting help out of the bathtub. She reported she was able to prepare meals
daily, do laundry (with help), shop in stores once a week, go to church on Sundays,
and visit with her children and grandchildren daily. (Tr. 12, 14, 132-36.)
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Based on the record before him, the ALJ properly discredited Plaintiff’s
subjective complaints and found that her symptoms did not diminish her ability to
perform the full range of sedentary work. Ellis v. Barnhart, 392 F.3d 988, 996 (8th
Cir. 2005). Because he expressly discredited her subjective allegations for legally
sufficient reasons, use of the Guidelines was proper without calling for vocational
expert testimony. Id.; Baker, 457 F.3d at 895; Patrick v. Barnhart, 323 F.3d 592, 596
(8th Cir. 2003).

III. Conclusion
After a careful review of the entire record and all arguments presented, the
Court finds that Plaintiff's arguments for reversal are without merit and that the record
as a whole contains substantial evidence upon which the ALJ could rely in reaching
his decision. The Court further concludes that the ALJ’s decision is not based on legal
error.
IT IS THEREFORE ORDERED THAT the final decision of the Commissioner
is affirmed and Plaintiff’s Complaint is DISMISSED, WITH PREJUDICE.
DATED THIS 13th DAY OF March, 2012.

______________________________________
UNITED STATES MAGISTRATE JUDGE
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