Kimble v. Social Security Administration

Filing 12

ORDER affirming the final decision of the Commissioner and dismissing pltf's complaint with prejudice. Signed by Magistrate Judge H. David Young on 1/19/12. (vjt)

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

TOMMY KIMBLE

VS.

PLAINTIFF

CASE NO. 2:11CV00125 HDY

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

ORDER
Plaintiff has appealed the final decision of the Commissioner of the Social Security
Administration to deny his claim for disability insurance benefits (DIB) and supplemental security
income (SSI). In this judicial review, the Court must determine whether there is substantial evidence
in the administrative record to support the Commissioner’s decision. 42 U.S.C. § 405(g).
This Court’s review function is limited to determining whether the Commissioner's findings
are supported by substantial evidence on the record as a whole. See Prosch v. Apfel, 201 F.3d 1010,
1012 (8th Cir. 2000). "Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's conclusions.” Id. The Court
may not reverse merely because evidence would have supported a contrary outcome. See id.
The only disputed issue in this case is whether plaintiff is disabled within the meaning of the
Social Security Act. Plaintiff bears the burden of establishing a physical or mental impairment that
will result in death, or that has lasted twelve months or more and has prevented her from engaging
in any substantial gainful activity. 42 U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 1382c(3)(A) and (B).

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Plaintiff protectively filed for DIB and SSI on July 11, 2007, alleging disability beginning
on December 21, 2006. His application was denied initially and upon reconsideration, and he
requested a hearing before an administrative law judge (ALJ).
Plaintiff was 48 years old at the time of the hearing, which was conducted on December 15,
2009. (Tr. 36-45). The plaintiff, who completed high school and two years of college, was the sole
witness at the hearing. The plaintiff has past relevant work as a factory worker and machine
operator. The plaintiff testified that he last worked on December 21, 2006, the date he had a heart
attack which resulted in a double bypass procedure. He stated that he could not now do a “sit down
job” because of the “stress factor.” (Tr. 38). The plaintiff drives “on a limited basis,” and does
some chores around the house. (Tr. 39). He testified to extreme fatigue every day, and indicated
that three hours on his feet during a day was too much for him. (Tr. 41). He attributed his fatigue
to the side effects from the heart medications. (Tr. 42). The plaintiff stated that he rests about two
hours during the day on his good days, and rests five to six hours on bad days. (Tr. 42-3). On
January 20, 2010, the ALJ found the plaintiff was not disabled as defined in the Social Security Act.
(Tr. 14-24). The ALJ specifically found the medical evidence established the plaintiff has coronary
artery disease status post heart attacks and bypass surgeries, hypertension, and hyperlipidemia. The
ALJ found the plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The
ALJ found the plaintiff has the residual functional capacity to perform the full range of sedentary
work. Relying upon the Medical -Vocational Guidelines, the ALJ found the plaintiff was not
disabled. The Appeals Council, on May 23, 2011, denied plaintiff’s request for review (Tr. 1-5),
and plaintiff subsequently filed suit with this Court.

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The ALJ considered his impairments by way of the familiar five-step sequential evaluation
process.
The first step involves a determination of whether the claimant is involved in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is, benefits are denied; if not, the
evaluation goes to the next step.
Step two involves a determination, based solely on the medical evidence, of whether the
claimant has a severe impairment or combination of impairments. Id., § 404.1520©); see 20 C.F.R.
§ 404.1526. If not, benefits are denied; if so, the evaluation proceeds to the next step.
Step three 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(d). If so, benefits are awarded; if not, the evaluation continues.
Step four involves a determination of whether the claimant has sufficient residual functional
capacity, despite the impairment(s), to perform past work. Id., § 404.1520(e). If so, benefits are
denied; if not, the evaluation continues.
Step five involves a determination of whether the claimant is able to perform other
substantial and gainful work within the economy, given claimant's age, education and work
experience. Id., § 404.1520(f). If so, benefits are denied; if not, benefits are awarded.
In support of his request for reversal, plaintiff asserts that the ALJ: (1) should have
considered a closed period of disability; (2) should have considered plaintiff’s nonexertional
limitations and , as a result, should not have used the Medical-Vocational Guidelines (the “Grids”)
at Step five of the sequential analysis; and (3) should have called a vocational expert to testify.
Plaintiff’s brief at 8-21. We will first consider ground one, then address grounds two and three as

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one claim for relief, as the two claims overlap1.
For the plaintiff’s first claim, he urges that the ALJ should have considered a closed period
of benefits from December 2006 through March 2009. To support this claim, the plaintiff points to
his testimony that he suffers from fatigue and side effects from his heart medications. In March of
2009 the plaintiff underwent a physical examination, including an echocardiogram, with Dr.
Isaacson. The results were essentially normal, with the physician concluding the plaintiff was “not
having any problems” though he complains of “some fatigue.” (Tr. 431). The plaintiff contends he
was entitled to at least a closed period of benefits prior to March of 2009. The problem with this
argument, however, is that the medical records do not correspond with the plaintiff’s subjective
complaints. The records show that the plaintiff has consistently made his physicians aware of
dizziness and fatigue after his December 2006 heart surgery. Even so, his physicians have not
imposed restrictions on the plaintiff. In February of 2007, the surgeon who performed the surgery
instructed the plaintiff to “return to work in two weeks.” (Tr. 260). In May of 2007, the plaintiff’s
cardiologist advised the plaintiff “to avoid strenuous physical exercise and long working hours,
especially strenuous physical activity. At the same time he was advised to start exercising daily, at
least 30 minutes.” (Tr. 299). As a result, it is fair to summarize the treating physicians as being
aware of the plaintiff’s subjective complaints yet not deeming them severe enough to warrant
significant restrictions on his activities. The record does not support the plaintiff’s claim that he was
entitled to a closed period of benefits from December of 2006 to March of 2009. The claim is
without merit.
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If the plaintiff establishes the ALJ erred in relying upon the Grids (ground two) then it follows that
the ALJ also erred by failing to call a vocational expert (ground three). Thus, the two grounds
amount to one claim for relief.
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In claims two and three, the plaintiff urges that vocational expert testimony is necessary
when nonexertional impairments are present. The defendant counters that the ALJ properly
discounted the plaintiff’s subjective complaints regarding nonexertional impairments and therefore
there was no error in relying on the Grids. We are guided on this issue by McGeorge v. Barnhart,
321 F.3d 766, 768 -769 (8th Cir. 2003):
In other words, the law of this circuit states that “an ALJ may use the Guidelines
even though there is a nonexertional impairment if the ALJ finds, and the record
supports the finding, that the nonexertional impairment does not diminish the
claimant's residual functional capacity to perform the full range of activities listed
in the Guidelines.” Thompson v. Bowen, 850 F.2d 346, 349-50 (8th Cir.1988).
Using the language from McGeorge, two questions must be answered: one, did the ALJ find that the
nonexertional impairments2 do not diminish the plaintiff’s residual functional capacity to perform
the full range of activities listed in the Guidelines?; and two, if the ALJ made such a finding, does
the record support the ALJ’s finding?
The first question is answered in the affirmative. A review of the ALJ’s opinion reflects that
he found the nonexertional impairments did not diminish the plaintiff’s RFC to perform the full
range of sedentary work. For example, the ALJ considered plaintiff’s subjective allegations and
found they were “exaggerated and not fully credible.” (Tr. 19). To support his conclusion, the ALJ
stated that he evaluated plaintiff’s statements and contrasted them “with the record as a whole,

2

The primary nonexertional impairments cited by the plaintiff are those related to his bypass surgery
in December 2006. See docket entry no. 10, page 8. The plaintiff also mentions his hypertension,
a nonexertional impairment that the ALJ found to be a severe impairment. The medical records
occasionally mention the plaintiff’s hypertension, including a reference to the plaintiff’s failure to
take his hypertension medications. (Tr. 218). Substantial evidence supports the position that the
plaintiff’s hypertension does not diminish his ability to perform the full range of sedentary work.
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including the findings upon physical examination and diagnostic study, the claimant’s course of
medical treatment, the credible medical opinion of record, the claimant’s activities of daily living,
and the claimant’s appearance and demeanor at the hearing.” (Tr. 19).
The second question from the McGeorge case is whether the record supports the ALJ’s
findings concerning the nonexertional impairments. We find the record does support the ALJ’s
finding that the plaintiff’s nonexertional impairments only minimally affect his ability to perform
sedentary work. Substantial evidence of record exists to support this conclusion. It is particularly
persuasive that no treating physician indicated that the nonexertional impairments required
significant restrictions on the plaintiff’s activities. To the contrary, the plaintiff’s surgeon opined
he should return to work around the first of March, 2007, with no comment on restrictions or work
level. A few months later, the plaintiff’s cardiologist suggested he avoid strenuous physical activity
and long working hours. Implicit in this comment is that the plaintiff was not restricted from normal
work hours not requiring strenuous physical exercise. For example, sedentary work would fall
squarely within the confines of the cardiologist’s comments. Based upon the foregoing, we find
there is no merit in claims two and three of the plaintiff.
In summary, the plaintiff’s arguments are without merit for the reasons stated herein.
Substantial evidence supports the Commissioner’s decision.
IT IS THEREFORE ORDERED that the final decision of the Commissioner is affirmed and
plaintiff’s complaint is dismissed with prejudice.
IT IS SO ORDERED this 19

day of January, 2012.
____________________________________
UNITED STATES MAGISTRATE JUDGE
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