Stewart v. Social Security Administration
RECOMMENDED DISPOSITION: The Court recommends DENYING Stewart's 2 request for relief and AFFIRMING the Commissioner's decision. Signed by Magistrate Judge Jerome T. Kearney on 6/16/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Catherine Elizabeth Stewart
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
Instructions for Recommended Disposition
The following recommended disposition will be sent to U.S. District Judge Susan
W. Wright. A party to this dispute may file written objections to this recommendation.
An objection must be specific and state the factual and/or legal basis for the objection.
An objection to a factual finding must identify the finding and the evidence supporting
the objection. Objections must be filed with the clerk of the court no later than 14 days
from the date of this recommendation.1 The objecting party must serve the opposing
party with a copy of an objection. Failing to object within 14 days waives the right to
appeal questions of fact.2 If no objections are filed, Judge Wright may adopt the
recommended disposition without independently reviewing all of the record evidence.
Catherine Elizabeth Stewart seeks judicial review of the denial of her application
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (failure to file objections waives
right to de novo review and to appeal magistrate judge’s findings of fact).
for social security disability benefits.3 Stewart last worked in December 2007 for Winn
Dixie as a cashier and deli manager.4 She quit her job when she moved to be closer to
her daughter.5 She looked for other work, but did not find another job.6 At that time,
Stewart’s husband was ill and unable to work. She became her husband’s care‐giver.7
She based disability on her nerves, hands, lower back, depression, and headaches.8
Shortly after applying for disability benefits, she underwent triple bypass surgery.
The Commissioner’s decision. The Commissioner’s ALJ initially determined
that Stewart can do some light work,9 but the Commissioner’s Appeals Council
remanded the claim back to the ALJ to provide a reasoned resolution of conflicts in the
medical opinion evidence.10 After doing so, the ALJ determined Stewart can do some
SSA record at pp. 212 & 219.
Id. at pp. 260 & 268.
Id. at pp. 46‐47 & 53. But see id. at 259 (reporting that she quit her job because she
couldn’t concentrate and was depressed; she takes care of her husband).
Id. at pp. 47‐48.
Id. at p. 70, 276‐77 & 283.
Id. at p. 259.
Id. at p. 96.
Id. at pp. 106‐07.
sedentary work.11 Because a vocational expert identified available sedentary work,12 the
ALJ determined Stewart is not disabled and denied the application.13
Stewart asked the Appeals Council to review the second decision.14 The Appeals
Council denied the request.15 Stewart filed this case to challenge the decision.16 In
reviewing the decision, the court must determine whether substantial evidence
supports the decision and whether the ALJ made a legal error.17 This recommendation
explains why substantial evidence supports the decision and why the ALJ made no
Stewart’s allegations. Stewart’s primary argument challenges the ALJ’s
resolution of conflicts in medical opinion evidence; she says the ALJ’s explanation lacks
Id. at p. 20.
Id. at pp. 50 & 78‐79.
Id. at pp. 25‐26.
Id. at p. 9.
Id. at p. 1.
Docket entry # 1.
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny an applicant
disability benefits if the decision is not based on legal error and if there is substantial
evidence in the record as a whole to support the conclusion that the claimant was not
rationale. She disagrees with the evaluation of her credibility. She contends she is
unable to do sedentary work. She maintains the ALJ should have included a limited
use of the hands, more balance restrictions, and an older age in determining her ability
to work. For these reasons, she maintains substantial evidence does not support the
Applicable legal principles. For substantial evidence to exist, a reasonable mind
must accept the evidence as adequate to show Stewart can do some sedentary work.19
Sedentary work “involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools.”20 Sedentary work
“represents a significantly restricted range of work. Individuals who are limited to no
more than sedentary work by their medical impairments have very serious functional
limitations.”21 The ALJ reduced sedentary work by the following limitations:
(1) occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps
or stairs; (2) no climbing ladders, ropes, or scaffolds; (3) no overhead work; and (4) no
Docket entry # 9.
Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Britton v. Sullivan, 908 F.2d 328,
330 (8th Cir. 1990).
20 C.F.R. §§ 404.1567(a) & 416.967(a).
SSR 96‐9p, Pol’y Interpretation Ruling Titles II & XVI: Determining Capability to Do
Other Work—Implications of a Residual Functional Capacity for Less Than a Full Range of
concentrated exposure to temperature extremes, humidity, fumes, odors, dusts, gases or
poor ventilation.22 The question before the court is whether a reasonable mind would
accept the evidence as adequate to show Stewart can work within these parameters.
Medical evidence. The ALJ’s determination about a claimant’s ability to work
must be supported by medical evidence; a claimant’s subjective allegations are not
enough to prove she is disabled.23 The medical evidence in this case establishes the
1. Osteoarthritis. “Osteoarthritis is a chronic joint disease involving
degenerative changes in joint cartilage and the underlying bones.”24 It is
part of the aging process. The disease is diagnosed using clinical findings
and osteoarthritic changes shown on x‐rays.25 X‐rays show Stewart has
mild osteoarthritic changes in the spine, shoulders, and right hand.26 Mild
changes suggest minimal impairment. Mild osteoarthritic changes have
not limited Stewart’s ability to walk, stand, or sit. During her consultative
exams, she walked normally, got on and off the exam table without
difficulty, squatted and rose, bent over without pain, sat without
difficulty, and grasped objects with full muscle strength.27 She
demonstrated no limitation during three exams. The mild changes in the
right hand required no additional limitation on sedentary work.
SSA record at p. 20.
42 U.S.C. § 423 (d)(5(A); Flynn v. Astrue, 513 F.3d 788, 792 (8th. Cir. 2008); Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003); 20 C.F.R. §§ 404.1508 & 416.908.
6 Attorneys’ Textbook of Med. 19B.00 (3d ed.).
Id. at 19B.50.
SSA record at pp. 347, 361 & 514.
Id. at pp. 375‐76, 407 & 514.
2. Coronary artery disease. A few months after applying for disability
benefits, Stewart learned she has coronary artery disease. She had three
blocked arteries. She underwent coronary artery bypass grafts to improve
the blood flow to the heart.28 Since that time, Stewart hasn’t had any
problems, despite risk factors.29 Her risk factors include smoking, obesity,
lack of exercise, high blood pressure, and high cholesterol.30
People with coronary artery disease often experience chest pain, shortness
of breath, fatigue, and disturbed sleep. Stewart complains about these
symptoms. Stewart’s symptoms might improve if she complied with
medical recommendations, but for now, Stewart’s symptoms support the
reduction of work to a sedentary level. Stewart attributes her symptoms
to physical exertion.31 Sedentary work requires little physical exertion.
Stewart’s failure to comply with medical recommendations weighs
against her credibility.
3. Breathing problems. Stewart complains about shortness of breath. The
record includes a diagnosis of chronic obstructive pulmonary disease
(COPD).32 COPD is a progressive disease of the respiratory system which
makes it harder to breathe. Smoking cigarettes is the primary cause of
COPD.33 Stewart has smoked cigarettes for 40 years,34 but a “history of
Id. at pp. 404 & 482.
Id. at p. 468 (per cardiologist, she is doing well; cardiologist reassured Stewart
and advised her stop smoking).
Lori De Milto & Teresa G. Odle, 2 The Gale Encyclopedia of Med. 1179‐80 (4th
SSA record at p. 55.
Id. at pp. 537 & 543.
Harry W. Golden & Tish Davidson, 2 The Gale Encyclopedia of Med. 1026 (4th
SSA record at pp. 64 & 373.
heavy smoking is not enough to diagnose COPD.”35
COPD is diagnosed using pulmonary function testing (PFT) or a diffusion
study. The record includes no diagnostic test. Without test results, there
is no way to determine the extent of Stewart’s breathing difficulty, but her
continued smoking indicates her problems are not significant. Without
test results, the medical evidence lacks the medically acceptable clinical
and laboratory diagnostic findings needed to establish COPD as an
impairment.36 Even if Stewart has COPD, the ALJ eliminated work
environments with pulmonary irritants that could make it harder to
4. Sleep disturbance. Stewart complains about poor sleep. At times she
complained about an inability to sleep; at other times, she complained
about too much sleep. The record includes a diagnosis of sleep apnea.37
“Sleep apnea is a condition in which breathing stops for more than ten
seconds during sleep.”38 Obesity and smoking are major risk factors for
sleep apnea.39 Stewart has these risk factors. Sleep apnea is diagnosed
Harry W. Golden & Tish Davidson, 2 The Gale Encyclopedia of Med. 1026 (4th
42 U.S.C. § 423 (d)(5(A) (“An individual’s statement as to pain or other
symptoms shall not alone be conclusive evidence of disability…; there must be medical
signs and findings, established by medically acceptable clinical or laboratory diagnostic
techniques, which show the existence of a medical impairment…which could reasonably
be expected to produce the pain or other symptoms alleged and which…would lead to a
conclusion that the individual is under a disability”); 20 C.F.R. §§ 404.1508 & 416.908 (“A
physical or mental impairment must be established by medical evidence consisting of
signs, symptoms, and laboratory findings, not only by your statement of symptoms.”).
SSA record at p. 537.
Richard Robinson & Rebecca J. Frey, 5 The Gale Encyclopedia of Med. 4017 (4th
Id. at p. 4018.
using a sleep study.40 The record includes no sleep study. Without a sleep
study, the medical evidence lacks the medically acceptable clinical and
laboratory diagnostic findings needed to establish sleep apnea as an
Even if Stewart has sleep apnea, there is no indication it impairs her ability
to work. Stewart has received no treatment for sleep apnea, other than a
recommendation to stop smoking. The lack of treatment and Stewart’s
failure to stop smoking indicates sleep apnea does not significantly limit
her ability to work. Smoking itself may be the cause of Stewart’s sleep
disturbance because “smokers often wake up after only a few hours of
sleep due to nicotine withdrawal.”41
A reasonable mind would accept the foregoing evidence as adequate to show Stewart
can work within the defined parameters because it shows nothing preventing Stewart
from lifting 10 pounds or occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Stewart reported that she can lift 15 pounds.42
Opinion evidence. The success of Stewart’s claim turns on her primary
argument — her complaint about the ALJ’s resolution of conflicts in medical evidence,
particularly the opinion evidence — because the medical evidence doesn’t justify a
further reduction in the ability to work. Stewart complains primarily about the rejection
of the third examining doctor’s opinion that she is unable to sit for more than four hours
Id. at p. 4019.
Rebecca J. Frey , Stephanie M. Watson & Ruth A. Wienclaw, 5 The Gale
Encyclopedia of Med. 4030 (4th ed.).
SSA record at pp. 301 & 406.
in an eight‐hour workday. The ALJ rejected the opinion. If Stewart can’t sit for more
than four hours, she cannot do sedentary work. The question before the court is
whether the ALJ had a proper basis for rejecting the opinion.
The ALJ must resolve the conflicts in the medical evidence before determining a
claimant’s ability to work.43 That duty applies to medical opinion evidence.44 “The ALJ
may reject the conclusions of any medical expert, whether hired by the claimant or the
government, if they are inconsistent with the record as a whole.”45 Stewart’s argument
implicates three consultative exams.
The first exam was done a few weeks before the coronary artery bypass grafts.46
The examiner found exertional limitations; specifically with lifting, carrying, walking,
and standing.47 The presence of coronary artery disease supports exertional limitations
because people with coronary artery disease often experience shortness of breath and
fatigue with exertion, especially people like Stewart who smoke and do no regular
Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (“It is the ALJ’s function
to resolve conflicts among the opinions of various treating and examining physicians.”
Dipple v. Astrue, 601 F.3d 833, 836 (8th Cir. 2010) (“It was the ALJ’s task to resolve
the differences between these consultative evaluations in the light of the objective
Pearsall, 274 F.3d at 1219.
SSA record at p. 372.
Id. at p. 377.
exercise. Sedentary work does implicate Stewart’s symptoms because it involves
The second exam was done three months after the coronary artery bypass
grafts.48 The second examiner thought that Stewart could sit, walk, and/or stand for a
full work day, and lift/carry up to 20 pounds.49 A person who do that can do light
work. A person who can do light work can do sedentary work because light work
requires more physical exertion. The opinion is particularly probative because the exam
was done a few months after the coronary artery bypass grafts.
The third exam was an orthopedic exam; it was done five weeks after Stewart’s
first hearing. The ALJ probably ordered the exam because Stewart complained about
right shoulder pain and the record included no diagnostic imaging of the right
shoulder. The examiner ordered x‐rays of the right shoulder. The x‐rays showed a
normal right shoulder.50
Although Stewart had a full range of motion in the right shoulder and lumbar
spine without pain, the examiner completed a medical source statement indicating that
Stewart can sit for no more than four hours in an eight‐hour workday.51 The ALJ
Id. at p. 406.
Id. at p. 409.
Id. at p. 514.
Id. at p. 516.
properly rejected that opinion because there is no medical basis for believing Stewart is
unable to sit for no more than four hours per day, and the because the opinion is
inconsistent with the record as a whole. The opinion had to be based on Stewart’s
subjective report because the imaging showed only “a minimal degree” of osteoarthritic
change in the back and because Stewart had a full, painless ranges of motion.52
The ALJ properly relied on clinical and laboratory diagnostic findings to resolve
the conflicts. Stewart’s cardiologist thinks she is doing well. She demonstrated no
functional impairment at three consultative exams. Coronary artery disease may limit
her ability to physically exert herself, but nothing shows it prevents her from sitting.
The ALJ did not err in resolving the conflicts.
Vocational evidence. After determining Stewart’s ability to work, the ALJ asked
a vocational expert about available work. Despite the numerous limitations the ALJ
placed on sedentary work, the vocational expert identified available work.53 Stewart
suggests the ALJ considered an erroneous age, but the record shows the ALJ and the
vocational expert knew how old Stewart was: 52 when she claims she became disabled
and 56 at the time of the hearing and the ALJ’s decision.54
Id. at p. 514.
Id. at pp. 50 & 78‐79.
Id. at pp. 24 & 37.
A person’s age is important in determining whether a claimant is disabled
because the regulations provide for special rules for claimants of advanced age (age 55
or older) who are limited to sedentary or light work. Under the special rules, the ALJ
will find the claimant can make an adjustment to other work if she has skills that can
transfer to other skilled or semiskilled work that she can do despite her impairment.55
The vocational expert confirmed that Stewart has transferrable skills.56 The vocational
evidence shows that work exists that Stewart can do, regardless of whether such work
exists where she lives, whether a job vacancy exists, or whether she would be hired if
she applied for work.57 Because such work exists, Stewart is not disabled.
Conclusion and recommendation. Sedentary work is a significantly restricted
range of work; only individuals with very serious functional limitations are unable to
do sedentary work. Stewart does not have a very serious functional limitation that
prevents her from doing sedentary work. Substantial evidence supports the ALJ’s
decision. The ALJ made no legal error. For these reasons, the undersigned magistrate
20 C.F.R. §§ 404.1568(d)(4) & 416.968(d)(4). To be transferrable, other work must
be so similar to the claimant’s previous work that she would need to make very little, if
any, vocational adjustment in terms of tools, work processes, work settings, or the
SSA record at p. 50.
42 U.S.C. § 1382c(a)(3)(B) (defining disability under social security disability
judge recommends DENYING Stewart’s request for relief (docket entry # 2) and
AFFIRMING the Commissioner’s decision.
It is so ordered this 16th day of June, 2014.
United States Magistrate Judge
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