Cooper v. Social Security Administration

Filing 15

OPINION AND ORDER AFFIRMING the final determination of the Commissioner and dismissing Cooper's complaint with prejudice. Signed by Judge J. Leon Holmes on 10/26/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PERRY SHANE COOPER
v.

PLAINTIFF
NO. 5:11CV00332 JLH/BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

OPINION AND ORDER
Perry Shane Cooper has appealed the Social Security Administration Commissioner’s final
decision to deny Cooper’s claim for disability insurance benefits. Both parties have submitted briefs,
and the case is ripe for decision. For the following reasons, the Court affirms the Commissioner’s
decision.
On May 10, 2010, Cooper filed an application for disability insurance benefits, alleging
disability of chronic asthma and constructive airway problems. See Tr. at 89-90. Cooper asserted
that his disability began on July 2008 after a severe case of bronchitis and pneumonia from which he
never recovered. Id. at 90. He later asserted that he had hypertension, obesity, and depression and
that he experienced panic and anxiety attacks. Id. at 32-39. After his application was twice denied
– first on September 10, 2010, and then on December 16, 2010 – Cooper requested a hearing. Id.
at 58-59. On June 29, 2011, an Administrative Law Judge conducted a video hearing at which
Cooper and a vocational expert testified. Id. at 10. On August 26, 2011, the ALJ issued a written
decision denying Cooper’s application. Id. at 10-19. On November 4, 2011, the Appeals Council
denied Cooper’s request for a review of the ALJ’s decision. Id. at 1-5. Therefore, the ALJ’s written
decision is the Commissioner of Social Security’s final decision in this action. See id. at 1.
The Court reviews the record to determine whether the Commissioner’s decision is supported
by substantial evidence in the record as a whole and is free of legal error. Slusser v. Astrue, 557 F.3d

923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427,
28 L. Ed. 2d 842 (1971) (citation omitted); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996)
(citation omitted).

In its review, the Court must consider evidence that detracts from the

Commissioner’s decision as well as evidence that supports it; the Court may not, however, reverse
the Commissioner’s decision merely because substantial evidence would have supported a different
decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993).
“Disability” is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .”
42 U.S.C. § 423(d)(1)(A). A “‘physical or mental impairment’ is an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
In his decision, the ALJ considered Cooper’s impairments by way of the required five-step
sequential evaluation process. Id. at 10-19. The first step is to determine whether the claimant is
involved in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in
substantial gainful activity, he will not be considered disabled, regardless of medical condition, age,
education, or work experience. Id. § 404.1520(b). The second step is to determine whether the
claimant has an impairment or combination of impairments that is “severe” and meets the duration
requirement. Id. § 404.1520(a)(4)(ii). If not, the claimant will not be considered disabled. Id. A

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“severe” impairment significantly limits a claimant’s ability to perform basic work activities. Id.
§ 404.1520(c). The third step is to determine whether any impairments meet or equal a listed
impairment. Id. § 404.1520(a)(4)(iii). If so, and if the duration requirement is met, the claimant will
be considered disabled. Id. If the claimant does not meet or equal a listed impairment, then a residual
functional capacity assessment is made. Id. § 404.1520(a)(4). This assessment determines, based on
all relevant evidence in the record, what a claimant can still do in a work setting despite the claimant’s
limitations. Id. § 404.1545(a)(1). The assessment takes into account all impairments, severe or not.
Id. § 404.1545(a)(2). The fourth step is to determine whether the claimant has sufficient residual
functional capacity to perform his past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant
will not be considered disabled. Id. The fifth step is to determine whether the claimant is able to
make an adjustment to other work, given the claimant’s age, education, work experience, and residual
functional capacity. Id. § 404.1520(a)(4)(v). If so, the claimant will not be considered disabled; if
not, the claimant will be considered disabled. Id.
At step one, the ALJ found that Cooper was not engaged in substantial gainful activity. Tr.
at 12. At step two, the ALJ found that Cooper had the following severe impairments: asthma,
hypertension, and obesity. Id. The ALJ also found, however, that Cooper’s recent depression was
not a severe impairment. Id. at 12-13. At step three, the ALJ found that Cooper does not have an
impairment or combination of impairments that meets or equals a listed impairment. Id. at 13. At
step four, the ALJ found that Cooper does not have sufficient residual functional capacity to perform
his past relevant work. Id. at 17. At step five, however, the ALJ found that Cooper can adjust to
and perform other work for which jobs exist in significant numbers in the national economy. Id. at
18. In so doing, the ALJ found that Cooper’s statements regarding the intensity, persistence, and

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limiting effects of his symptoms were not credible, to the extent that the statements were inconsistent
with the state agency’s residual functional capacity assessment. Id. at 16.
The ALJ also did not give much weight to some assessments of two of Cooper’s treating
physicians, Thomas Lewellen, M.O., and Robert Scott, M.D. Dr. Lewellen and Dr. Scott filled out
separate pulmonary residual functional capacity questionnaires for Cooper in October 2010. Each
concluded that Cooper was incapable of tolerating even “low stress” jobs. Id. at 251, 257. Dr.
Lewellen also concluded that Cooper could walk between one and two city blocks without rest, could
sit for only twenty minutes at one time before needing to get up, could sit for less than two hours in
an eight-hour workday, and would likely to miss four days a month from work due to his
impairments. Id. at 258-61. Dr. Scott concluded that Cooper could walk less than one block before
needing rest, could sit for more than two hours without needing to get up, could sit for at least six
hours in an eight-hour workday, and would likely to miss only one day a month from work due to his
impairments. Id. at 252-55. The ALJ stated that the two assessments were somewhat inconsistent,
that treatment notes from Dr. Scott did not exist in the record, that Dr. Lewellen had only seen
Cooper on three occasions, and that another examining physician found that Cooper’s conditions did
not limit his ability to work. Id. at 17. Because the ALJ found at step five that Cooper could make
an adjustment to other work, the ALJ concluded that Cooper was not disabled and could not receive
disability insurance benefits. Id. at 19.
Cooper’s sole argument on appeal is that the ALJ committed reversible error by not giving
proper weight to the medical opinions of Cooper’s treating sources. Some issues dispositive of a
case, such as whether the applicant is disabled or unable to work, are reserved for the Commissioner
and not for medical sources. 20 C.F.R. § 404.1527(d)(2). A treating physician’s opinions regarding

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diagnosis, symptoms, and severity of an applicant’s impairment, as well as what the applicant is
capable of doing, are not dispositive of the case. See Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir.
2005). For these non-dispositive issues, an ALJ generally gives controlling weight to a treating
physician’s medical opinion if the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.”
Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (internal quotation marks omitted); 20 C.F.R.
§ 404.1527(c)(2). Treating physicians’ opinions may be discounted, for instance, if they are
inconsistent with the opinions of other physicians, “especially where those opinions are supported by
more or better medical evidence.” Teague, 638 F.3d at 615-16 (“[The treating physician] did not cite
clinical test results, observations, or other objective findings as a basis for determining Teague’s
capabilities.”); see Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (“The ALJ was entitled to give
less weight to Dr. Harry’s opinion, because it was based largely on Kirby’s subjective complaints
rather than on objective medical evidence.”). An ALJ looks to a number of factors to determine how
much weight to give to medical opinions, including the examining relationship, the treatment
relationship, the length and frequency of the relationship, the amount of relevant evidence the
physician uses to support the opinion, the consistency of the opinion with the record as a whole, and
whether the physician is a specialist. See 20 C.F.R. § 404.1527(c)(1)-(6); Duncan v. Barnhart, 368
F.3d 820, 823-24 (8th Cir. 2004).

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In this action, substantial evidence exists to support the ALJ’s determination that Dr. Scott’s1
and Dr. Lewellen’s opinions do not merit controlling weight.2 First, Dr. Lewellen’s and Dr. Scott’s
opinions are somewhat inconsistent. In Dr. Lewellen’s opinion, for example, Cooper can walk
between one and two city blocks without rest, can sit for only twenty minutes at one time before
needing to get up, can sit for less than two hours in an eight-hour workday, and is likely to miss four
days a month from work due to his impairments. Tr. at 258-61. In Dr. Scott’s opinion, however,
Cooper can walk less than one block before needing rest, can sit for more than two hours without
needing to get up, can sit for at least six hours in an eight-hour workday, and is likely to miss only
one day a month from work due to his impairments. Tr. at 252-55, 289-93.
Second, Dr. Lewellen’s and Dr. Scott’s opinions are inconsistent with other medical evidence
in the record. Dr. David Chambers performed a physical exam on Cooper at Delta Health Services

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Cooper asserts that the ALJ disregarded Dr. Scott’s pulmonary residual functional capacity
questionnaire because it was signed by Dr. Scott and not Cindy O’Neal, a nurse practitioner who saw
Cooper more often than did Dr. Scott when Cooper visited St. Elizabeth Health Center. See Tr. at
31. After the administrative hearing, Cooper had O’Neal fill out a separate pulmonary residual
functional capacity questionnaire that Cooper submitted to the Appeals Council. See Tr. at 289-93.
No evidence exists that the ALJ gave less weight to Dr. Scott’s opinion than he would have if O’Neal
had signed the pulmonary functional capacity questionnaire. In fact, as a nurse practitioner, O’Neal’s
opinions automatically would not be given controlling weight. See Lacroix v. Barnhart, 465 F.3d
881, 885-86 (8th Cir. 2006) (explaining that a nurse practitioner is not a “treating source” as defined
in the federal regulations, and only treating sources will be given controlling weight). Cooper also
acknowledges that O’Neal’s conclusions were virtually unchanged from Dr. Scott’s conclusions.
Document #11, at 11. Thus, because substantial evidence exists to support the ALJ’s decision not
to give much weight to Dr. Scott’s conclusions, for most of those same reasons, substantial evidence
also exists not to give much weight to O’Neal’s conclusions.
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Because substantial evidence exists to support the ALJ’s determination that some of Dr.
Lewellen’s and Dr. Scott’s opinions do not deserve much weight, the Court need not decide whether
their conclusion that Cooper cannot perform even “low stress” jobs is a “medical opinion” for
purposes of 20 C.F.R. § 404.1527 or instead is the type of dispositive opinion left to the
Commissioner.
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on April 14, 2010, and found Cooper capable of full participation in physical activity, with no
restrictions. Tr. at 212.3 Progress notes from St. Elizabeth’s Health Center from August 25, 2009,
through June 10, 2010, indicate that Cooper’s blood pressure was controlled with medication. Tr.
at 216-19. Ronald Davis, M.D., although not one of Cooper’s treating physicians, completed a
physical residual functional capacity assessment of Cooper on September 10, 2010, and found Cooper
capable of working at a medium level of exertion. Tr. at 248. Similarly, Jim Takach, M.D., a medical
consultant at the state agency, completed a physical residual functional capacity assessment of Cooper
on December 16, 2010, and found that Cooper had mild asthma and was capable of working at a light
level of exertion. Tr. at 263. A pulmonary function test on August 13, 2010, found severe lung
obstruction, but the technician administering the test commented that Cooper gave a poor effort and
would not blast out (i.e., blow into the device used for the test) hard or fast for any length of time.
Tr. at 231. A second pulmonary function test on September 9, 2010, showed improvement in lung
function, but the technician still commented that Cooper only gave a fair effort and would not blast
out hard and fast. Tr. at 238. Notes from later medical examinations also state that Cooper’s asthma
and hypertension were controlled. Tr. at 282. These opinions reveal inconsistencies with Dr.
Lewellen’s and Dr. Scott’s opinions regarding the severity of Cooper’s impairments, as well as with
their opinion that Cooper cannot handle even “low stress jobs.”

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At the administrative hearing, Cooper testified that the pre-employment physical
administered by Dr. Chambers was unlike any Cooper previously had gone through and that
Dr. Chambers did not know what kind of physical the company expected him to give. See Tr. at 40.
Even if Cooper’s testimony was fully credible – and the ALJ found it was not, see id. at 17, a decision
that Cooper does not contest here – this Court’s function is not to decide which medical conclusion
is proper, but rather to decide whether substantial evidence exists to uphold the ALJ’s decision not
to give controlling weight to Dr. Scott’s and Dr. Lewellen’s opinions.
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Third, Dr. Lewellen’s and Dr. Scott’s opinions do not seem to be based as much on objective
evidence – i.e., on diagnostic tests – as on subjective determinations of Cooper’s impairments. The
conclusions Dr. Lewellen and Dr. Scott reach regarding Cooper’s work capabilities come from their
filling out an identical pulmonary residual functional capacity questionnaire. See Tr. at 250-61. The
only diagnostic tests in the record that were requested by Dr. Lewellen were an x-ray of Cooper’s
chest in March 2010, which showed no evidence of congestive changes and no enlarged heart, Tr.
at 199, and an echocardiogram report in April 2010 that showed concentric hypertrophy, good wall
motion, normal LV function, mild mitral regurgitation, and no evidence of a mural thrombus or
pericardial effusion. Id. at 201. Dr. Lewellen did not cite to or use any of these tests to explain his
conclusions on the pulmonary residual functional capacity questionnaire. Similarly, neither Dr. Scott
nor nurse practitioner O’Neal cited to or used test results to explain the basis for their conclusions
on the residual functional capacity questionnaires. Further, Dr. Lewellen and Dr. Scott are primary
care physicians, not asthma, lung, or heart specialists, and opinions of sources who are not specialists
generally are given less weight than opinions of specialists. See 20 C.F.R. § 404.1527(c)(5).
Fourth, the length and frequency of Cooper’s relationships with Dr. Lewellen and with Dr.
Scott support the ALJ’s decision. Dr. Lewellen was Cooper’s primary care physician for about one
year, see Tr. at 31, and had only seen Cooper three times. See Tr. at 256. Cooper stated that Dr.
Lewellen was his doctor through October 2010, although records show that he first visited St.
Elizabeth Health Center, where he saw nurse practitioner O’Neal or Dr. Scott, in August 2010. Id.
at 219. Whether nurse practitioner O’Neal or Dr. Scott began treating Cooper in August 2010 or
after October 2010, they were not in charge of Cooper’s care when he filed for disability insurance

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benefits in May 2010 and had been in charge of his care for less than one year when the administrative
hearing for this action took place on June 29, 2011.
The inconsistencies between Dr. Lewellen’s and Dr. Scott’s opinions, the inconsistencies
between their opinions and other medical evidence in the record, the lack of objective medical
evidence used to form their opinions, and the length and frequency of Cooper’s relationships with
these medical sources makes clear that substantial evidence exists to support the ALJ’s decision to
give less than controlling weight to some of Dr. Scott’s and Dr. Lewellen’s opinions. Cooper argues,
however, that even if substantial evidence supports the ALJ’s decision, the ALJ committed reversible
error by not applying all of the factors set forth in 20 C.F.R. § 404.1527(c).4 Yet Cooper points to
no source, including Social Security Ruling 96-2p, that states that the ALJ must recite and then apply
in its opinion every factor listed in 20 C.F.R. § 404.1527(c). Instead, the issue is whether substantial
evidence in the record as a whole supports the ALJ’s decision. See Perkins v. Astrue, 648 F.3d 892,
899 (8th Cir. 2011) (“In addition to the reasons the ALJ provided, other evidence in the record
supports the ALJ’s decision. . . . Upon reviewing the entire record, we conclude that there is
substantial evidence to support the ALJ’s finding that certain opinions . . . are inconsistent with Dr.
Meidi’s own treatment notes and other relevant evidence.”). Moreover, the ALJ did discuss the
inconsistencies between Dr. Lewellen’s and Dr. Scott’s opinions, the lack of objective medical
evidence to support their conclusions, and the inconsistences between their conclusions and the other

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As stated above, these factors include the examining relationship, the treatment relationship,
the length and frequency of the relationship, the relevant evidence the physician uses to support the
opinion, the consistency of the opinion with the record as a whole, and whether the physician is a
specialist. 20 C.F.R. § 404.1527(c).
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medical evidence in the record. See Tr. at 17. Therefore, the ALJ did not commit reversible error
by not specifically stating and applying every factor in 20 C.F.R. § 404.1527(c).
It is not this Court’s task to review the evidence and make an independent decision. Neither
is it this Court’s duty to reverse the ALJ’s decision because there is evidence in the record that
contradicts his findings. The test is “whether there is substantial evidence in the record as a whole”
that supports the ALJ’s decision. Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). The Court
has reviewed the entire record, including the briefs, the ALJ’s decision, the transcript of the hearing,
and the medical and other evidence. There is ample evidence in the record as a whole that “a
reasonable mind might accept as adequate to support” the ALJ’s conclusion in this case. Richardson
v. Perales, 402 U.S. at 401, 91 S. Ct. at 1427. The Commissioner’s decision is not based on legal
error.
THEREFORE, the Court hereby affirms the final determination of the Commissioner and
dismisses Cooper’s complaint with prejudice.
IT IS SO ORDERED this 26th day of October, 2012.

________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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