Lynn v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner. Plaintiff's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 6/26/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DEBRA LYNN, on behalf of
Kerry Dale Lynn
NO. 3:16-cv-00313 PSH
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Debra Lynn, on behalf of her late father Kerry Dale Lynn (“Lynn”), began
this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, plaintiff
challenged the final decision of the Acting Commissioner of the Social Security
Administration (“Commissioner”), a decision based upon findings made by an
Administrative Law Judge (“ALJ”).
Plaintiff maintains that the ALJ’s findings are not supported by substantial
evidence on the record as a whole and offers two reasons why.1 Plaintiff first maintains
that Lynn’s residual functional capacity was erroneously assessed. Plaintiff so maintains
because the record does not contain a physical residual functional capacity assessment
from a treating or examining physician, Lynn’s morbid obesity was not adequately
considered, and there is no evidence he could sit for long periods.
The question for the Court is whether the ALJ’s findings are supported by substantial evidence
on the record as a whole. “Substantial evidence means less than a preponderance but enough that a
reasonable person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d
860, 863 (8th Cir. 2011).
The ALJ is required to assess the claimant’s residual functional capacity, which
is a determination of “the most a person can do despite that person’s limitations.” See
Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using
all of the relevant evidence in the record, but the assessment must be supported by
some medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). As a part
of making the assessment, the ALJ must evaluate the claimant’s subjective complaints.
See Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001). The ALJ does so by considering
the medical evidence and evidence of the claimant's daily activities; the duration,
frequency, and intensity of his pain; the dosage and effectiveness of his medication;
precipitating and aggravating factors; and functional restrictions. See Id. at 1218 [citing
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)].
Lynn alleged in his application for disability insurance benefits that he became
disabled on September 30, 2009. Although that date would typically denote the
beginning of the relevant period, the ALJ found the following:
Claimant’s alleged onset date is September 30, 2009. However, claimant
has filed prior applications. The claimant filed a prior application that
resulted in an unfavorable decision before an administrative law judge on
September 27, 2013. There is no basis to reopen the prior application and
administrative finality applies through September 27, 2013. Accordingly,
any discussion of the evidence prior to that time is for historical and
contextual purposes only and does not constitute reopening.
See Transcript at 21. Plaintiff does not challenge the finding, and it is supported by
substantial evidence on the record as a whole. Thus, the relevant period is from
September 28, 2013, through November 12, 2015, i.e., the date of the ALJ’s decision.
Evidence prior to September 28, 2013, will only be considered for historical purposes.
Plaintiff has ably summarized the evidence in the record, see Document 19 at
CM/ECF 3-17, and the Commissioner does not challenge the summary. The Court
accepts the summary as a fair summation of the evidence. The summary will not be
reproduced, save to note evidence germane to Lynn’s morbid obesity and his ability to
sit for long periods as those issues form the basis of plaintiff’s challenge to the ALJ’s
On November 2, 2009, an MRI was taken of Lynn’s cervical spine. See Transcript
at 326-328. The results revealed mild degenerative disc changes in his cervical spine
but no significant central canal narrowing. When Dr. Jeremy Swymn, M.D., (“Swymn”)
saw Lynn one week later, Swymn observed that the MRI showed no nerve impingement.
See Transcript at 330.
Lynn sought medical attention on several occasions between September 2, 2009,
and September 28, 2013, for complaints that included chest pain, shortness of breath,
and pain and swelling in his lower extremities. See Transcript at 684-686, 688-690, 650652, 642-646, 627-632, 615-620, 572-580, 581-583, 558-567, 543-552, 526-536, 892-293,
522-523, 507-515, 491-498, 436-446, 407-413, 404-405, 387-388. For instance, on March
19, 2010, he presented to a hospital complaining of pain and swelling in his lower
extremities. See Transcript at 684-690. A history of Meniere’s disease was noted, and
he was diagnosed with leg edema and venous insufficiency. In August of 2012, he
presented to the hospital complaining of chest pain and shortness of breath. The results
of an EKG were normal, his troponins were negative, and a chest x-ray was
unremarkable. See Transcript at 412. Obstructive sleep apnea syndrome was later
diagnosed, and use of a CPAP was recommended.
After September 28, 2013, the record reflects that Lynn continued to seek
medical attention for complaints that included chest pain and shortness of breath. Lynn
saw Dr. John House, M.D., (“House”) on January 16, 2014, for other impairments. See
Transcript at 337-341, 770-774. While in the examination room, Lynn experienced a
syncopal event. Lynn was transported to a local hospital and admitted for the syncope
event and abdominal pain. He was released later that same day after test results were
within normal limits. See Transcript at 344.
House saw Lynn again on January 22, 2014. See Transcript at 766-770. House’s
progress notes contain the following notation:
... [Lynn] was seen here last week and had syncopal event. Was sent to
the ER by ambulance. Was admitted for “severe dehydration.” Notes that
they did ultrasound of heart, neck, and legs. No blood clots. Had two EKGs
which were normal. Says that they did CT of head, neck, and low back.
The only finding was chronic sinusitis. Says that they stopped lasix and
spironolactone. Also stopped metformin due to CT. Has restarted
See Transcript at 768.
Lynn continued to see House or his associates throughout 2014. See Transcript
at 762-766 (03/11/2014), 759-762 (04/23/2014), 755-759 (05/22/2014), 751-755
(06/17/2014), 747-751 (07/31/2014), 743-747 (09/30/2014). The progress notes from
the examinations are routine. For instance, when Lynn presented on May 22, 2014, he
reported that he had been exercising but was sore from “trying to lift light weight.”
See Transcript 757. Upon examination, he exhibited normal tone and motor strength
and exhibited normal movement in all of his extremities. Diabetes, hypertension, and
a history of pulmonary embolus were diagnosed, and medication was prescribed.
Lynn sought medical attention from other medical care providers during 2014.
See Transcript at 699-704 (06/03/2014), 731-734 (08/07/2014), 728 (08/07/2014), 740743 (10/14/2014), 859-865 (12/07/2014). The progress notes from those examinations
are routine and shed little light on his postural limitations. It is noteworthy that during
the December 7, 2014, examination, he reported that he was only experiencing mild
soreness in his right calf. See Transcript at 860.
In 2015, Lynn sought medical attention for complaints that included sinusitis and
painful feet. See Transcript at 919-922 (01/06/2015), 939-940 (06/02/2015), 938
(06/23/2015), 926-930 (06/30/2015), 969-973 (08/04/2015), 942 (08/11/2015). The
progress notes from the examinations are also routine. The notes reflect that he
continued to receive medication for his sinusitis and was prescribed medication for the
cracking and dryness in his heels. It is worth noting that he was seen by an advanced
practice nurse at House’s office on January 6, 2015, and was observed to be
“ambulating normally.” See Transcript at 921. Upon examination, Lynn had normal tone
and motor strength and had normal movement in all of his extremities.
On September 18, 2015, Lynn sought medical attention for complaints that
included abdominal and low back pain. See Transcript at 1021-1026. Pancreatitis was
diagnosed. He was subsequently diagnosed with pancreatic cancer, see Transcript at
1051, and died from the illness on June 17, 2016, see Transcript at 1706.
An assessment was made of Lynn’s physical residual functional capacity by state
agency physicians. See Transcript at 72-78, 86-92, 100-107, 116-123. They opined that
he was capable of sitting for about six hours in an eight hour workday and was therefore
capable of performing light work with some additional postural limitations.
The record contains a history of Lynn’s reportable earnings for the years 1998
through 2010. See Transcript at 211-212. The history reflects that he had regular
reportable earnings through 2010.
Lynn completed a series of documents in connection with his application for
disability insurance benefits. See Transcript at 232-242, 243-245, 249-256. In a pain
report, he represented that he experienced constant pain in his legs. He could only sit
for about fifteen minutes at one time before he began to experience pain, and nothing
other than medication helped relieve the pain. He was taking Coumadin and Lasix for
In a function report, Lynn represented that his daily activities included eating
meals, watching television, texting or playing games on his telephone, and going
outside when the weather permitted. He could not attend to his own personal care but
could prepare simple meals and do some house and yard work. He could shop and did
so once a week for about forty-five minutes at a time. His hobbies and interests included
watching television and playing games on his telephone, activities he did daily and
Lynn testified during the administrative hearing. See Transcript at 41-59. He was
born on December 12, 1972, and graduated from high school. He stood seventy inches
tall and weighed 412 pounds. He was able to, and did, drive an automobile. He worked
until sometime in 2010 when he stopped working because of stress and pain in his neck
and legs. He had venous insufficiency in his legs which gave rise to difficulties standing,
walking, and sitting. He was taking Lasix, and it helped reduce the fluid in his legs.
Lynn could attend to his own personal care and could perform some household chores.
He would occasionally entertain friends and would attend church when he could. When
asked if he could work a job that combined standing and sitting for eight hours, he
testified that he did not know if he could perform the requirements of such work
because of the pain in his legs. He typically did not sit for more than thirty to forty
minutes at a time. When watching television or sitting for prolonged periods, he would
alternate between sitting and standing. The heaviest he ever weighed was
approximately 492 pounds.
The ALJ found at step two of the sequential evaluation process that Lynn had
severe impairments in the form of “degenerative disc disease of the cervical and lumbar
spine, diabetes mellitus, hypertension, obstructive sleep apnea, Meniere’s disease,
morbid obesity, GERD, and lower extremity venous insufficiency. See Transcript at 24.
The ALJ assessed Lynn’s residual functional capacity and found that he could perform
sedentary work with the following additional limitations:
... claimant can stand and or walk for no more than two hours of an eight
hour workday; ... cannot climb ladders, ropes or scaffolds; ... cannot
perform balancing duties in the workplace; ... can perform no more than
occasional climbing of ramps or stairs; ... can no more than occasionally
stoop, kneel, crouch, or crawl; ... cannot be exposed to unprotected
heights, or hazards in the workplace; and ... cannot operate foot controls
with the lower extremities.
See Transcript at 25. In making the foregoing findings, the ALJ evaluated all of the
evidence, including the opinions offered by the state agency physicians. The ALJ gave
the state agency physicians’ opinions little weight because the physicians failed to
consider the combined effects of Lynn’s impairments and because the physicians did
not hear his testimony regarding his ability to stand and walk.
Lynn had postural limitations caused by venous insufficiency and degenerative
disc disease. The ALJ incorporated limitations for the impairments into the assessment
of Lynn’s residual functional capacity but found that he could perform the sitting
requirements of sedentary work. The ALJ could find as he did as substantial evidence
on the record as a whole supports his consideration of the evidence and his assessment
of Lynn’s residual functional capacity. The Court so finds for the following reasons.
First, the ALJ adequately considered the medical evidence relevant to Lynn’s
postural limitations. For instance, the ALJ properly noted the results of MRI testing,
results that showed Lynn to have mild degenerative disc disease with no nerve
impingement. At a December of 2014 examination, Lynn represented that he had only
mild soreness in his right calf. The ALJ properly noted that in January of 2015, Lynn
was observed to be ambulating normally. Lynn also exhibited normal tone and motor
strength and normal movement in all of his extremities. The ALJ noted the evidence
relevant to Lynn’s excessive weight, evidence that reflects his Body Mass Index (“BMI”)
was in the range of fifty-six to fifty-eight or within the morbidly obese range. The ALJ
additionally noted the evidence relevant to Lynn’s leg pain, pain attributed primarily
to venous insufficiency.
Second, the ALJ adequately considered the non-medical evidence relevant to
Lynn’s postural limitations. The ALJ could and did properly note that Lynn’s daily
activities were inconsistent with an inability to perform work-related activities.
Specifically, the ALJ could and did note that Lynn shopped, did some house work,
watched television, drove an automobile, sat with family and friends while talking, and
attended church when he could. The ALJ could and did note, inter alia, that no
physician ever imposed any restrictions upon Lynn’s activities. Additionally, the ALJ
could and did note that Lynn was not compliant with the use of a CPAP, but Lynn’s
medications were helpful in treating his symptoms. For instance, Lynn was using
Coumadin and Lasix for his venous insufficiency, and the medications appear to have
helped reduced the fluids in his legs. The ALJ could and did note that Lynn’s symptoms
were treated conservatively, specifically noting that surgery was never recommended.
Plaintiff challenges the assessment of Lynn’s residual functional capacity
because the record does not contain a physical assessment from a treating or examining
physician and cites the Court to Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), in support
of the proposition.2 Although it is true that there is no assessment of Lynn’s physical
abilities by a treating or examining physician, and such an assessment would have been
helpful, a remand is not warranted because the record contains ample evidence for the
ALJ to have made an informed decision.3 A fair reading of the ALJ’s decision reflects
that he relied upon the relevant evidence in making the assessment, and the assessment
is consistent with the evidence. It is also worth observing that the ALJ is not required
to link each part of the assessment with a specific medical opinion. See Martise v.
Astrue, 641 F.3d 909 (8th Cir. 2011). Moreover, unlike in Nevland v. Apfel, the ALJ in
this instance did not base his decision solely on the opinions of the state agency
physicians. Instead, the ALJ discounted their opinions and ultimately determined that
Lynn was more limited than what they opined.
In Nevland v. Apfel, the Court of Appeals reversed the ALJ’s decision because he relied solely upon the
opinions of non‐examining, non‐treating physicians in determining that a claimant was not disabled.
“[T]here is no requirement that a [residual functional capacity] finding be supported by a specific medical
opinion,” see Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016), and the ALJ has the discretion whether to order a
consultative examination, see Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004).
Plaintiff challenges the assessment of Lynn’s residual functional capacity
because his morbid obesity was not adequately considered. The record establishes
otherwise. The ALJ found Lynn’s morbid obesity to be a severe impairment at step two;
considered his morbid obesity as “an aggravating factor to any other severe impairment
that in combination would meet a listing,” see Transcript at 24; then considered his
morbid obesity in conjunction with his other impairments. The ALJ found, and
substantial evidence on the record as a whole supports the finding, that Lynn had a BMI
in excess of fifty-six but had attempted exercise and attended a weight loss seminar.
There is nothing to suggest the ALJ’s consideration of the evidence was flawed or was
Plaintiff also challenges the assessment of Lynn’s residual functional capacity
because there is no evidence he could sit for long periods. The ALJ could and did
properly find, though, that Lynn was capable of performing the sitting requirement of
sedentary work. The findings and observations of the medical professionals with regard
to Lynn’s gait, station, range of motion, and muscle strength and tone were largely
unremarkable. When Lynn was seen at House’s clinic in May of 2014, Lynn reported
having exercised but was sore from “trying to lift light weight.” When Lynn was seen
by another medical professional in December of 2014, Lynn reported only mild soreness
in his right calf. In January of 2015, an advanced practice nurse at House’s clinic
observed that Lynn was ambulating normally. Moreover, Lynn’s daily activities were
inconsistent with his assertion of disabling pain. His activities included shopping, doing
some house work, watching television, driving an automobile, sitting with family and
friends while talking, and attending church when he could.
The governing standard in this case, i.e., substantial evidence on the record as
a whole, allows for the possibility of drawing two inconsistent conclusions. See
Culbertson v. Shalala, 30 F.3d 934 (8th Cir. 1994). In this instance, the ALJ’s assessment
of Lynn’s residual functional capacity was not improper.
Plaintiff offers a second reason why the ALJ’s findings are not supported by
substantial evidence on the record as a whole. Plaintiff maintains that the ALJ’s
hypothetical question did not incorporate Lynn’s morbid obesity.
Testimony from a vocational expert is substantial evidence on the record as a
whole only when “the testimony is based on a correctly phrased hypothetical question
that captures the concrete consequences of a claimant’s deficiencies.” See Taylor v.
Chater, 118 F.3d 1274, 1278 (8th Cir. 1997). Thus, the hypothetical question must
include all those impairments that are substantially supported by the record as a whole.
The record reflects that a vocational expert testified during the administrative
hearing. See Transcript at 59-62. The vocational expert summarized Lynn’s past work,
and the ALJ found that Lynn could not return to his past work because it involved
greater than sedentary work. The ALJ then posed a series of hypothetical questions to
the vocational expert, none of which specifically mentioned Lynn’s excess weight. The
vocational expert testified that a hypothetical individual with Lynn’s limitations could
perform work as a telephone quote clerk and a table worker. The ALJ relied upon the
vocational expert’s answers and found at step five that there was other work Lynn could
perform. The ALJ therefore found that Lynn was not disabled for purposes of the Social
Substantial evidence on the record as a whole supports the ALJ’s hypothetical
questions and his finding at step five. It is true that the questions did not specifically
mention “morbid obesity,” but the ALJ’s failure to include any mention of “morbid
obesity” in the questions does not warrant a remand. The questions adequately
captured the concrete consequences of Lynn’s deficiencies, deficiencies that included
his morbid obesity, and the limitations they cause. The individual identified in the
hypothetical questions was restricted to “sedentary exertional work as [the phrase is]
defined in the Dictionary of Occupational Titles with standing and walking not more
than two hours of an eight-hour day for the worker,” could not climb ladders, ropes, or
scaffolds, could not perform balancing functions, and could no more than occasionally
perform the “remaining postural functions.” See Transcript at 60.1
On the basis of the foregoing, the Court finds that there is substantial evidence
on the record as a whole to support the ALJ’s findings. Plaintiff’s complaint is dismissed,
all requested relief is denied, and judgment will be entered for the Commissioner.
IT IS SO ORDERED this 26th day of June, 2017.
UNITED STATES MAGISTRATE JUDGE
Plaintiff maintains that Morrison v. Apfel, 146 F.3d 625 (8th Cir. 1998), requires the ALJ to
specifically include the claimant’s obesity in formulating a hypothetical question. Her reliance on Morrison
v. Apfel in this instance, though, is misplaced because there is no evidence Lynn’s morbid obesity was ever
identified as a “major medical issue.” See Burnett v. Colvin, 2014 WL 5795788 at 2 (E.D.Ark. 2014)
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