Melder v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER AFFIRMING the Commissioner's determination; this appeal is denied. Signed by Magistrate Judge Beth Deere on 2/1/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
REBECCA LYNN MELDER
V.

PLAINTIFF

CASE NO.: 4:11CV00880 BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Rebecca Lynn Melder appeals the final decision of the Commissioner of
the Social Security Administration (the “Commissioner”) denying her claim for Disability
Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”).1 For
reasons set out below, the decision of the Commissioner is AFFIRMED.
I.

Background
On February 13, 2008, Ms. Melder protectively filed for DIB, alleging disability

beginning on January 1, 2005, due to kidney removal, fibromyalgia, chronic pain, liver
malfunction, left knee endoscopy, Barrett’s esophagus, connective tissue disease,
migraines, restless legs, and rheumatoid arthritis. (Tr. 196-198, 216, 220) Ms. Melder’s
claims were denied initially and upon reconsideration. At her request, an Administrative
Law Judge2 (“ALJ”) held a hearing on March 9, 2010, at which Ms. Melder appeared
with her attorney. (Tr. 92) At the hearing, the ALJ heard testimony from Ms. Melder, her
husband, and a vocational expert (“VE”). (Tr. 92-154)
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The parties consented to the jurisdiction of the Magistrate Judge. (#3)

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The Honorable David J. Manley.

The ALJ issued a decision on July 28, 2010, finding that Ms. Melder was not
disabled under the Act. (Tr. 81-87) On October 31, 2011, the Appeals Council denied
Ms. Melder’s request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 1-5)
Ms. Melder was fifty-four years old at the time of the hearing. (Tr. 98) She had a
high school education and some vocational training. She had past relevant work as an
office manager or bookkeeper. (Tr. 141, 239-241)
Ms. Melder’s insured status for DIB ended on March 31, 2010. She was required
to show that she was disabled prior to this date.
II.

Decision of the Administrative Law Judge
The ALJ followed the required sequential analysis to determine: (1) whether the

claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant
work3; and (5) if so, whether the impairment (or combination of impairments) prevented
the claimant from performing any other jobs available in significant numbers in the
national economy. 20 C.F.R. §§ 404.1520(a)-(g).

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If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. § 404.1520(a)(4)(iv).
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The ALJ found that Ms. Melder had not engaged in substantial gainful activity
since her alleged disability onset date. (Tr. 83) And he found that Ms. Melder’s
fibromyalgia was a severe impairment. (Tr. 83-84) The ALJ also found, however, that
Ms. Melder did not have an impairment or combination of impairments meeting or
equaling an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1526). (Tr. 84)
The ALJ determined that Ms. Melder had the residual functional capacity (“RFC”)
to perform a full range of light work. (Tr. 84-86) Because the ALJ determined that Ms.
Melder retained the RFC to perform her past relevant work, he found her not to be
disabled. (Tr. 87)
III.

Analysis
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,

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the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
B.

Plaintiff’s Arguments for Reversal

Ms. Melder claims the ALJ erred by finding: (1) that fibromyalgia was her only
severe impairment; and (2) that she retained the RFC to perform her past relevant work.
(#11)
C.

Severe Impairments

Ms. Melder claimed disability due to kidney removal, fibromyalgia, chronic pain,
liver malfunction, left knee endoscopy, Barrett’s esophagus, connective tissue disease,
migraines, restless legs, and rheumatoid arthritis. (Tr. 220) She testified that her
fibromyalgia caused her pain. (Tr. 114) Her attorney stated that her liver malfunction
was no longer impacting her. (Tr. 139)
Ms. Melder had the burden to prove that her impairments were severe. Mittlestedt
v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). The ALJ found that of all the claimed
impairments, only migraines, Barrett’s esophagus, and restless leg syndrome were even
mentioned in the medical records. (Tr. 83) He found that there were no medical
documents to support either then-current migraines or any treatment for migraines. (Tr.
83) He found further that there was no supportive medical evidence to show that
Barrett’s esophagus or restless leg syndrome significantly limited Ms. Melder’s work
capacity. (Tr. 83)

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To meet her burden of proving her impairments were severe, Ms. Melder needed
to cite evidence in the record supporting her argument. She cited a physical RFC
checklist, completed with Ms. Melder’s assistance, by her treating physician, Fred Nagel,
M.D. (Tr. 496-499)
Dr. Nagel’s physical RFC checklist stated that Ms. Melder’s prognosis was fair
and that anxiety was affecting her condition. (Tr. 496-497) A consultative mental
diagnostic evaluation found no evidence of a psychiatric or anxiety disorder. (Tr. 500507)
Dr. Nagel listed extreme limitations, but without supporting medical evidence or
testing. A conclusory checkbox form has little evidentiary value when it provides little or
no elaboration and cites no medical evidence. Anderson v. Astrue, 696 F.3d 790, 794 (8th
Cir. 2012) The limitations were internally inconsistent and the admitted result of Ms.
Melder’s subjective allegations.
Dr. Nagel said that Ms. Melder could walk a maximum of two city blocks without
rest or severe pain. (Tr. 497) But he also said that during an eight-hour workday, Ms.
Melder would need to walk every fifteen minutes, for ten minutes each time. (Tr. 498)
This would mean, according to the checklist, that Ms. Melder must walk over three hours
each eight-hour workday to be able to work. But the checklist states that Ms. Melder
could not even walk two hours in an eight-hour workday. (Tr. 497)

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Dr. Nagel also said that during an eight-hour workday, Ms. Melder would have to
take a fifteen minute break about every thirty minutes. (Tr. 498) This would require over
two and a half hours of rest each eight-hour workday. It is not clear how Ms. Melder
would rest, but Dr. Nagel stated that she could not even sit for two hours in an eight-hour
workday. (Tr. 497)
With her condition, Ms. Melder was still able to go on an eight- or nine-day bus
trip to the Northeast to look at the leaves. (Tr. 133, 139) Ms. Melder stated that she
could walk around the bus and the bus made frequent stops. But if she really could not
sit, stand, or walk for even four hours during an eight-hour span, an eight- or nine-day bus
trip would not be possible.
Ms. Melder testified that she was in Dr. Nagel’s office when he completed the
checklist. (Tr. 109-110) Dr. Nagel asked Ms. Melder the questions on the checklist, and
she gave him the answers. (Tr. 110)
There is an additional problem with relying on the checklist for the argument that
the ALJ erred by finding that fibromyalgia was Ms. Melder’s only severe impairment.
Dr. Nagel listed only one diagnosis–fibromyalgia. (Tr. 496) Dr. Nagel noted chronic
pain, but Ms. Melder testified that her fibromyalgia caused her pain. (Tr. 114) The ALJ
found fibromyalgia, with symptoms of pain, to be a severe impairment. (Tr. 83, 85-86)
Ms. Melder also cited almost the entire medical record, and stated, “even a cursory review
. . . clearly reveals Ms. Melder’s longstanding battle with pain and functional restriction.”

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(#11 at p. 11) The ALJ noted and credited, to an extent, Ms. Melder’s longstanding pain.
(Tr. 85-86) The ALJ’s RFC determination, which is not challenged, included functional
restrictions. (Tr. 84-86)
The only other medical evidence Ms. Melder cites to support an additional severe
impairment is found in records submitted to the Appeals Council. (Tr. 8-43, 60-64)
These records are almost exclusively from a time period from October 2010, to August
2011. Ms. Melder’s insured status for DIB ended on March 31, 2010. She had to prove
she suffered a disability by that date to be eligible for benefits. These records reflect Ms.
Melder’s condition six months after the relevant period, and several months after the ALJ
issued his decision on July 28, 2010.
When a claimant submits evidence to the Appeals Council that was not submitted
to the ALJ, the Appeals Council must determine whether that evidence is “new and
material” and “relates to the period on or before the date of the ALJ’s decision.” 20
C.F.R. § 404.970(b). The evidence is new if it is more than merely cumulative of other
evidence in the record. Bergmann v. Apfel, 207 F.3d 1065, 1069-1070 (8th Cir. 2000).
The evidence is material if it is relates to the claimant’s condition for the relevant time
period and does not merely detail after-acquired conditions or post-decision deterioration
of a pre-existing condition. Id.
Ms. Melder cites the new records and argues that she has been suffering symptoms
and complaints for “some time”. (#11 at p. 11) The medical record Ms. Melder cites and

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quotes does not actually say she has been suffering symptoms for “some time.” (Tr. 60)
(#11 at p. 11) Instead, the medical record states that she “may have early stages of lupus
. . . .” (Tr. 60) The early stages of lupus, six months after the relevant time period, would
be an after-acquired condition.
A separate record does say that Ms. Melder has had symptoms for “quite some
time,” but confirms that she is “primarily suffering from fibromyalgia.” (Tr. 64) Medical
records from 2002 show that Ms. Melder’s condition then was very similar to her
condition in 2010. (Tr. 67-74) Ms. Melder performed her past relevant work until 2005,
almost three years after the medical tests in 2002.
The evidence from the relevant period shows that Ms. Melder suffered from severe
fibromyalgia with associated chronic pain. Her attorney made it clear at the
administrative hearing that the ALJ had all relevant medical records. (Tr. 95) The
Commissioner did not err in consideration of medical records from six months after the
end of the relevant period. The ALJ certainly did not err by failing to consider medical
records that were not in existence until three months after his decision.
The only medical evidence from the relevant time period that Ms. Melder cites to
support her argument that she suffered additional severe impairments lists only
fibromyalgia as an impairment, the same impairment found severe by the ALJ. Ms.
Melder failed to cite any medical evidence to support her contention that her other

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impairments were severe. Accordingly, the ALJ did not err in finding only Ms. Melder’s
fibromyalgia with associated pain as severe.
D.

Past Relevant Work

A claimant is not disabled if she retains the residual functional capacity to
perform: (1) the actual functional demands and job duties of a particular past relevant
job; or (2) the functional demands and job duties of the occupation as generally required
by employers throughout the national economy. Wagner v. Astue, 499 F.3d 842, 853
(2007). The ALJ may seek vocational expert testimony to evaluate a claimant’s ability to
perform past relevant work. Id.
In this case, the ALJ found that Ms. Melder retained the RFC to perform light
work. (Tr. 84-86) Ms. Melder did not present an argument, or reference any evidence,
to challenge the RFC determination. (#11)
The VE testified that Ms. Melder performed her past relevant work as a
bookkeeper and office manager at the sedentary, skilled level. (Tr. 141) Ms. Melder
performed her past relevant work as it was generally performed in the national economy.
(Tr. 141) The VE testified that a hypothetical individual with Ms. Melder’s RFC, age,
and educational and work history could perform this past relevant work. (Tr. 141-142)
Ms. Melder states, without any supporting argument, that the ALJ’s past relevant
work finding was not supported by substantial evidence. (#11 at p. 10-11) When an
ALJ’s hypothetical captures all of the concrete consequences of a claimant’s

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impairments, as here, VE testimony constitutes substantial evidence supporting the ALJ’s
disability determination. Buckner v. Astrue, 646 F.3d 549, 561 (8th Cir. 2011).
The VE’s identification of Ms. Melder’s past relevant work, combined with the ALJ’s
RFC finding and hypothetical, was sufficient to support the ALJ’s finding at step four.
IV.

Conclusion
The Court has reviewed all of the evidence in the record. There is sufficient

evidence in the record as a whole to support the Commissioner’s determination that
Rebecca Lynn Melder retained the RFC to perform her past relevant work.
Accordingly, this appeal is DENIED, and the Clerk of Court is directed to close
the case, this 1st day of February, 2013.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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