Smith v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER dismissing pltf's complt. All requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge H. David Young on 5/19/2011. (lej)

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

MIKEL K. SMITH

PLAINTIFF

v.

NO. 4:10CV00171 HDY

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER

BACKGROUND. Plaintiff Mikel K. Smith (“Smith”) began his attempt to obtain
benefits by filing applications for disability insurance benefits and supplemental security
income benefits pursuant to the provisions of the Social Security Act (“Act”). His
applications were denied initially and upon reconsideration. He then requested, and
received, a de novo hearing before an Administrative Law Judge (“ALJ”). A decision
adverse to Smith was eventually issued by the ALJ, and Smith appealed to the Appeal
Council. The adverse decision was subsequently affirmed by the Appeals Council and
therefore became the final decision of the Commissioner of the Social Security
Administration (“Commissioner”). Smith then commenced the case at bar by filing a
complaint pursuant to 42 U.S.C. 405(g). In the complaint, he challenged the
Commissioner’s final decision.

STANDARD OF REVIEW. The sole inquiry for the Court is to determine whether the
ALJ’s findings are supported by substantial evidence on the record as a whole. The
standard requires the Court to take into consideration “the weight of the evidence in the
record and apply a balancing test to evidence which is contrary.” See Heino v. Astrue,
578 F.3d 873, 878 (8th Cir. 2009) [internal quotations and citations omitted].
THE ALJ’S FINDINGS. The ALJ made findings pursuant to the five step sequential
evaluation process. At step one, the ALJ found that Smith has not engaged in substantial
gainful activity since the alleged onset date. At step two, the ALJ found that Smith has
the following severe impairments: “back, hypertension, knee and vision problems.” See
Transcript at 36. At step three, the ALJ found that Smith does not have an impairment
or combination of impairments listed in, or medically equal to one listed in, the
governing regulations. The ALJ then assessed Smith’s residual functional capacity; in
doing so, the ALJ considered the medical and non-medical evidence in the record. The
ALJ found that Smith has the following residual functional capacity:

... the claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant
can only lift and carry 20 pounds occasionally and 10 pounds frequently.
The claimant can sit for about six hours during an eight-hour workday and
can stand and walk for about six hours during an eight-hour workday. The
claimant can only occasionally climb ladders and scaffolds and he can
occasionally crawl. He can frequently climb stairs and ramps, balance,
stoop, kneel, and crouch. The claimant should not do work requiring
excellent vision, but he could avoid normal workplace hazards and would
be able to determine differences in shapes and color of small objects such
as screws, nuts and bolts.

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See Transcript at 38. At step four, the ALJ found that Smith cannot perform his past
relevant work as a “cook at a fast food restaurant, order puller at a cold storage, and
over-the-road truck driver.” See Transcript at 40. At step five, the ALJ found that
considering Smith’s residual functional capacity, age, education, and work experience
in conjunction with the testimony of vocational expert, jobs exist in significant numbers
in the national economy that Smith can perform.1 Given the foregoing findings, the ALJ
concluded that Smith is not disabled within the meaning of the Act.
SMITH’S ASSERTIONS OF ERROR. Are the ALJ’s findings supported by substantial
evidence on the record as a whole? Smith thinks not and advances three reasons why.
First, he maintains that his obesity was not properly considered. Second, he maintains
that that ALJ did not fully develop the record because he did not order consultative
examinations. Last, Smith maintains that his residual functional capacity was not properly
assessed.
OBESITY. Smith maintains that his obesity was not properly considered. In support
of his assertion, he specifically maintains the following: “The ALJ erred by failing to find
that [Smith’s] obesity was a severe impairment. The ALJ did not specifically consider the
effects of [Smith’s] obesity on his level of functioning and made no finding regarding
whether his obesity was severe.” See Document 10 at 19.

1

The ALJ found that on the alleged disability onset date, Smith was thirty-two years old, which is
defined as a younger individual, and has at least a high school education. The ALJ also found that
“[t]ransferability of job skills is not an issue ... because the claimant’s past relevant work is unskilled ...”
See Transcript at 40.

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At step two, the ALJ is obligated to identify the claimant’s impairments and
determine whether they are severe.2 At step three, the ALJ is obligated to determine
whether the impairments, when considered individually and in combination, meet or
equal a listed impairment. See Raney v. Barnhart, 396 F.3d 1007 (8th Cir. 2005). The
determinations at steps two and three are strictly medical determinations. See Bowen
v. Yuckert, 482 U.S. 137 (1987) (step two); Cockerham v. Sullivan, 895 F.2d 492 (8th Cir.
1990) (step three). Before proceeding to step four, the ALJ is obligated to assess a
claimant’s residual functional capacity.3 The assessment is made using all of the relevant
evidence in the record and must be supported by “medical evidence that addresses the
claimant’s ability to function in the workplace.” See Brown v. Barnhart, 390 F.3d 535,
539 (8th Cir. 2004) [quoting Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)]. The
assessment must take into account all of a claimant’s impairments, even those that are
not severe. See 20 C.F.R. 404.1545(e), 20 C.F.R. 416.945(e).
In the paperwork Smith completed in connection with his applications for benefits,
he represented that he is six feet tall and weighed 350 pounds. See Transcript 121. By
the time of the administrative hearing, he testified that he weighed 480 pounds. See
Transcript at 12. The ALJ noted Smith’s obesity and addressed it as follows:
2

An impairment is severe if it has “more than a minimal effect on the claimant’s ability to work.”
See Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1992) [internal quotation omitted].
3

Residual functional capacity is simply an assessment 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) [citing 20 C.F.R.
404.1545(a)(1)].

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With regard to obesity, there is no evidence that it has resulted in the
claimant’s inability to ambulate effectively or perform routine movement
and necessary physical activity within the work environment. Further,
although the claimant’s obesity is mentioned by his treating physician, no
particular medical significance is corresponded with this condition. While
no listing now exists for obesity, the Listing of Impairments recognizes that
obesity is often associated with disturbance of the pulmonary and
cardiovascular systems, and that the combined effects of obesity with
pulmonary and cardiovascular impairments can be greater than the effects
of each of the impairments separately ... Consequently, the claimant’s
obesity has been considered in accordance with SSR 02-1p, and the
limitations associated with said obesity incorporated in the below residual
functional capacity ...

See Transcript at 40.
The Court is satisfied that the ALJ’s findings regarding Smith’s obesity are
supported by substantial evidence on the record as a whole. The ALJ properly found at
steps two and three that Smith’s obesity is not a severe impairment and, when
considered individually and in combination with his other impairments, does not meet or
equal a listed impairment.4 Although his weight is clearly excessive, a fact duly noted by
his physicians, see Transcript at 225, 229-231, 253, 285, there is no medical evidence
that his weight has more than a minimal effect on his ability to work. As the ALJ also
noted, obesity is often associated with other impairments and the combined effects of
obesity on those impairments “can be greater than the effects of each of the
impairments separately.” See Transcript at 40. Nevertheless, there is no medical
evidence that his weight has exacerbated any other impairment in any meaningful way.
4

Obesity is no longer a listed impairment. See 64 Fed. Reg. 46122 (1999).

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The ALJ also properly included Smith’s obesity in assessing his residual functional
capacity. The ALJ specifically considered Smith’s obesity in accordance with Social
Security Ruling 02-1p and incorporated the limitations associated with his obesity into the
residual functional capacity assessment.5 The extent of the limitations caused by his
obesity, though, is not great as he appears to have continued to work for several years
after he was first diagnosed as obese.6 See Banks v. Massanari, 258 F.3d 820 (8th Cir.
2001) (claimant worked extensively with all but one impairment). It is particularly telling
that no physician ever placed any limitation on Smith’s ability to perform work-related
activities because of his obesity. See McNamara v. Asture, 590 F.3d 607 (8th Cir. 2010)
(nothing in medical record indicated physician ever placed limitation on claimant’s ability
to work). It is also particularly telling that he has produced no evidence of a limitation
caused by his obesity but not considered by the ALJ.
CONSULTATIVE EXAMINATIONS. Smith next maintains that the ALJ did not fully
develop the record. Smith specifically maintains that the ALJ failed to do so because he
did not honor Smith’s requests for “orthopedic and cardiac consultative examination[s].”
See Transcript at 168. It is Smith’s position that the examinations were required because
“the ... medical records did not provide sufficient evidence for the ALJ to make an
informed decision.” See Document 10 at 20.
5

The ALJ found that Smith can perform light work with additional limitations. See Transcript at 38.
6

Smith was diagnosed as obese as early as 2001. See Transcript at 240. His earnings record indicates
that he continued to work until at least 2006. See Transcript at 99-100.

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The ALJ has an obligation to fully and fairly develop the record. See Battles v.
Shalala, 36 F.3d 43 (8th Cir. 1994). The obligation exists even if the claimant is
represented by counsel. See Boyd v. Sullivan, 960 F.2d 733 (8th Cir. 1992). With regard
to ordering a consultative examination, it is reversible error for an ALJ not to order such
an examination when it is necessary to make an informed decision. See Freeman v. Apfel,
208 F.3d 687 (8th Cir. 2000).
The record reflects that Smith requested orthopedic and cardiac consultative
examinations prior to, and during, the administrative hearing. See Transcript at 10, 168.
He requested the examinations because, save two emergency room visits, financial
concerns prevented him from visiting a physician since the first months of 2008. See
Transcript at 10, 168. The ALJ never ordered the examinations and gave no reason for
declining to do so.
The Court has examined the record and is satisfied that the ALJ did not err in
declining to order orthopedic and cardiac consultative examinations. Smith identified the
matters that the consultative examinations would have disclosed, see Document 10 at 2021, but those matters are largely cumulative as the medical record already contained
evidence of the matters. For instance, Smith maintains that the examinations would have
substantiated his claims of back and knee problems. The record, however, contains
numerous references to both impairments, see Transcript at 188-307, impairments that
the ALJ found to be severe. Thus, the Court is satisfied that the record was adequate for
the ALJ to make an informed decision.
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RESIDUAL FUNCTIONAL CAPACITY. Smith last maintains that his residual functional
capacity was not properly assessed. He specifically maintains that the assessment made
by the ALJ is not supported by any medical evidence.7
In assessing Smith’s residual functional capacity, the ALJ briefly noted Smith’s
medical history and his impairments, severe and not severe, supported by the medical
evidence. The ALJ found that the medical evidence did not preclude the performance of
light work with some additional restrictions. The ALJ also considered Smith’s subjective
complaints. The ALJ noted that to the extent Smith’s complaints were not substantiated
by the medical evidence, the record as a whole was considered to determine the
credibility of his complaints. In doing so, the ALJ cited, inter alia, 20 C.F.R. 404.1529,
20 C.F.R. 416.929, and Social Security Ruling 96-7p.8 The ALJ found that although Smith
experiences some pain, the severity of his pain is not as great as he alleged and does not
preclude the performance of light work with some additional restrictions.
The Court is satisfied that the ALJ properly assessed Smith’s residual functional

7

As the Court has noted, residual functional capacity is simply an assessment of “the most a person
can do despite that person’s limitations.” See Brown v. Barnhart, 390 F.3d at 538-39. The assessment is
made using all of the relevant evidence in the record and must be supported by “medical evidence that
addresses the claimant’s ability to function in the workplace.” See Id. at 539 [quoting Lewis v. Barnhart,
353 F.3d at 646].
8

Social Security Ruling 96-7p outlines the standard the ALJ must use in assessing the credibility of
a claimant’s statements. It conforms to the standard articulated in Polaski v. Heckler, 739 F.2d 1320 (8th
Cir.1984), by providing that the ALJ must consider, inter alia, the following factors in assessing the
claimant’s credibility: the claimant’s daily activities; the location, duration, frequency, and intensity of
the claimant’s pain and other symptoms; factors that precipitate and aggravated the symptoms; the type,
dosage, effectiveness, and side effects of any medication; and any functional restrictions.

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capacity. The ALJ properly considered the medical evidence, including the findings and
opinions of Smith’s treating physicians. There is nothing about their findings and opinions
that contravene the ALJ’s finding that Smith is capable of performing light work with
some additional restrictions. First, Smith has a history of panic attacks. See Transcript
at 295. There is scant medical evidence to support the impairment, and the ALJ did not
take it into account in making his assessment. Second, Smith is clearly obese. The ALJ
took the impairment into account in making his assessment. Third, Smith has a history
of hypertension. See Transcript at 191, 210. Although there is medical evidence to
support the impairment, there is no medical evidence that it impacts his residual
functional capacity in any way. Apparently for that reason, the ALJ did not find any
restriction caused by the hypertension. Fourth, Smith has a history of visions problems.
See Transcript at 182-187, 216-219. There is medical evidence to support the
impairment, and the ALJ took it into account in making his assessment. Fifth, Smith has
a history of back problems. See Transcript at 188-209, 250-279. Save some spondylosis
and curvature, though, a lumbar x-ray of his back was unremarkable. See Transcript at
215. Sixth, Smith has a history of knee problems. See Transcript at 225-244, 248-249.
There is medical evidence to support the impairment, although not to the degree he
alleged. He had surgery on his right knee in January of 2008, and the physician’s notes
reflect that Smith was “doing well” during his recovery. See Transcript at 282. The ALJ
took Smith’s back and knee impairments into account in making his assessment.
The ALJ also properly considered the non-medical evidence, including Smith’s
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subjective complaints. There is nothing about the non-medical evidence that contravenes
the ALJ’s finding that Smith is capable of performing light work with some additional
restrictions. He largely complained of pain in his back and knees. Although he is
undoubtedly in some pain, his credibility is undermined by the extent of his daily
activities, see Transcript at 137-142; the conservative treatment prescribed by his
treating physicians, see Transcript at 225-244, 248-249, 250-279; his decision at times to
decline pain medication, see Transcript at 251; and, particularly telling, his failure to
keep appointments with a chronic pain specialist, see Transcript at 191.
CONCLUSION. There is substantial evidence on the record as a whole to support
the ALJ’s findings. Accordingly, Smith’s complaint is dismissed, all requested relief is
denied, and judgment will be entered for the Commissioner.
IT IS SO ORDERED this

19

day of May, 2011.

UNITED STATES MAGISTRATE JUDGE

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