Wisniewski v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 13, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Valerie Lynn Wisniewski
Civil No. 10-2091
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Factual and Procedural Background
Plaintiff, Valerie Lynn Wisniewski, appeals from the decision of the Commissioner of the
Social Security Administration denying her claim for a period of disability, disability insurance
benefits (“DIB”) and supplemental security income benefits (“SSI”), pursuant to §§ 216(I) and 223
of Title II of the Social Security Act, 42 U.S.C. §§ 416(I) and 423(d), and § 1602 of Title XVI, 42
U.S.C. § 1381a, respectively (collectively, “the Act”). 42 U.S.C. §405(g).
Plaintiff protectively filed her DIB and SSI applications on June 26, 2006, alleging a
disability onset date of April 28, 2006. T. 119. Allegations included diabetes, hepatitis C, blurry
right eye and depression. T. 137. At the time of the onset date, Plaintiff was 52 years old and
possessed a General Equivalency Degree (G.E.D.), having dropped out of high school in the 11th
grade. T. 32. She had past relevant work as a hand packer and legal assistant. T. 46. Plaintiff’s
applications were denied at the initial and reconsideration levels. T. 89, 92, 97, 99. At Plaintiff’s
request, an administrative hearing was held in Clarksville, Arkansas, on February 22, 2008. T. 2669. Plaintiff was present at this hearing and represented by counsel. Vocational Expert Joe Thomas
also testified. Administrative Law Judge (“ALJ”) Penny M. Smith issued a decision on July 16,
2008, finding that Plaintiff was not disabled within the meaning of the Act. T. 87. On April 30,
2010, The Appeals Council found no basis to reverse the ALJ’s decision. T.1. Therefore, the ALJ’s
November July 16, 2008, decision became the Commissioner’s final administrative decision.
Plaintiff provided two records of treatment prior to her application for benefits:
On July 23, 2002, Plaintiff was seen at North Arundel Hospital Emergency Department in
Glen Burnie, Maryland, complaining of chest pain, coughing and fever T. 200. Chest x-rays showed
no evidence of active cardiopulmonary disease. T. 203.
E.R. notes indicate Plaintiff had a past
medical history of diabetes and was “inconsistent with her insulin.” T. 200. Her blood sugar was
2011 and her liver enzymes were SGOT/AST 87, SGPT/ALT 902. T. 205. She was diagnosed with
non-cardiac chest pain and Type I diabetes mellitus and sent home that day with instructions to
return for worsening chest pain, increasing shortness of breath, fever or vomiting. T. 197. She was
referred for followup with Dr. Aiello and advised to continue her insulin as prescribed. Id. There
are no records to indicate that she made or kept an appointment with Dr. Aiello.
On January 11, 2005, Plaintiff was admitted for a three day stay at North Arundel Hospital
The American Diabetes Association criteria for diagnosis of diabetes mellitus is a fasting glucose level
greater than or equal to 126 mg/dl after no caloric intake for at least eight hours.
http://care.diabetesjournals.org/content/27/suppl_1/s5.full (last visited July 6, 2011).
Hepatitis C is an infection caused by a virus that attacks the liver. As is the case with Plaintiff, it is most
commonly transmitted through blood, primarily when drug users share needles.
Merck Research Laboratories,
The Merck Manual of Diagnosis and Therapy at 223 (18th ed. 2006). The normal range of values for AST (SGOT)
is from 5 to 40 units per liter of serum (the liquid part of the blood). The normal range of values for ALT (SGPT) is
from 7 to 56 units per liter of serum. http://www.hepatitis-central.com/hcv/labs/liverenzymes.htm (Last visited July
following a loss of consciousness and fall at her home. T. 212. While in the hospital she was the
subject of cardiology, maxillofacial surgery, and neurological consultations. T. 207-211. Plaintiff’s
liver enzymes were “slightly elevated” (SGOT/AST 53, SGPT/ALT 60) and her random blood sugar
was 401 upon admission, 255 upon release. T. 212, 222. Her final diagnoses were: acute syncope,
comminuted fracture of the nose3, hepatitis C, essential hypertension, diabetes mellitus, history of
drug abuse in the past and poor dentition. T.213.
Plaintiff provided one record of treatment following her application for benefits:
On February 7, 2008, Plaintiff was seen at River Valley Christian Clinic4 in Dardanelle,
Arkansas. T. 294. She complained of chest pain after taking her anti-hypertension medication, pain
in her right leg for two months and that she had been out of insulin for two days. Id. She was
prescribed a different blood pressure medicine and sent home with a glucometer with instructions
to continue to work on a diabetic diet, insulin dosage, walking, and medications. Id. Her blood
sugar was high at 219 and her liver enzymes were elevated: SGOT/AST 156, SGPT/ALT 112. T.
Following her application for benefits, Plaintiff was referred for three consultative
On July 27, 2006, Plaintiff underwent a “Mental Status and Evaluation of Adaptive
Functioning” exam performed by psychologist Don Ott, Psy. D. T. 235-242. Dr. Ott noted that
Plaintiff broke her nose in the fall.
The mission of the River Valley Christian Clinic is to provide health care and spiritual guidance to anyone
in the river valley who cannot afford access to traditional health care. http://rvchristianclinic.org (Last visited July
Plaintiff was considerably overweight5, most of her teeth were missing and she walked with a limp.
T. 235. Plaintiff reported no history of outpatient treatment for mental or emotional disorders and
was currently taking 10 mg Lexapro6 every day. T. 236. Dr. Ott diagnosed her with Dysthymic
Disorder7 and noted her condition was “essentially the same after two years of antidepressant
medication8. Significant improvement is unlikely without psychotherapy and lifestyle changes.” T.
239. No specific limitations in the areas of concentration, persistence, or pace were observed. T.
On September 12, 2006, Plaintiff underwent a general physical exam performed by Rex W.
Ross, M.D. T. 270-276. He diagnosed her with Type I diabetes mellitus, depression, hepatitis C,
cataract, possible diabetic neuropathy, chronic pain and swelling in left leg–possibly diabetes related.
T. 276. He assessed moderate limitations on Plaintiff’s ability to walk, stand, sit, lift and see. Id.
On July 12, 2007, Plaintiff underwent a second “Mental Status and Evaluation of Adaptive
Functioning” exam performed by clinical psychologist Steve A. Shry, Ph.D. T. 286-289. By this
time she had stopped taking her antidepressants, stating that Lexapro “helped, but it made [her]
falsely happy.” T. 286. During this exam, Plaintiff was irritable, flippant, vague, and tended to
Plaintiff is 5'6" and weighs 210 lbs . T. 136, 159, 282, 287, 294.
Lexapro® is a selective serotonin reuptake inhibitor indicated for acute and maintenance treatment of
major depression disorder and acute treatment of generalized anxiety disorder. PDR Network, LLC, Physicians’
Desk Reference at 1130 (65th ed. 2011).
The essential feature of Dysthymic disorder is a chronically depressed mood that occurs for most of the
day more days than not for at least two years. Individuals with Dysthymic disorder describe their mood as “sad” or
“down in the dumps. Diagnostic and statistical manual of mental disorders 300.4 (American Psychiatric
Association, ed., 4th ed. 2000 ). Dysthymic disorder and Major Depressive Disorder are differentiated based on
severity, chronicity, and persistence. In Major Depressive Disorder, the depressed mood must be present for most of
the day, nearly every day, for a period of at least two weeks. Id. At 374.
She was diagnosed with depression by a general practitioner in 2004. T. 286.
ramble. T. 287. Dr. Shry suspected she was exaggerating her symptoms. T. 288. He diagnosed her
with a history of poly substance abuse and personality disorder not otherwise specified (anti-social
features). T. 289. Based on her interview involving past interactions with coworkers and others, Dr.
Shry assessed moderate limitations in Plaintiff’s ability to interact appropriately with the public,
supervisors and coworkers and mild limitations in her ability to respond appropriately to usual work
situations and to changes in a routine work setting. T. 292.
Plaintiff reported that she has been dependent on heroin and has abused other street drugs.
She spent a total of four years in prison on drug-related charges. T. 237.
After the ALJ hearing, Plaintiff underwent an ophthalmology examination at River Valley
Christian Clinic. T. 304. The examination revealed a cataract in her right eye. The examiner noted
her diabetes was poorly controlled and diagnosed her with myopia and legal blindness in her right
Non Examining/Non Treating Sources
On August 10, 2006, Dan Donahue, Ph.D., determined that Plaintiff has symptoms of a
significant mental disorder that regularly interfere with adaptive functioning that, while serious, do
not meet/equal a mental listing. T. 256. Dr. Donahue was of the opinion that Plaintiff could perform
unskilled work. Id. He assessed the following functional limitations: restriction of activities of
daily living: mild; difficulties in maintaining social functioning: moderate; difficulties in maintaining
concentration, persistence or pace: moderate. T. 254. He assessed her functional capacity as being
able to perform work where interpersonal contact is incidental to work performed, e.g. assembly
work; complexity of tasks is learned and performed by rote, few variables, little judgment;
supervision required is simple, direct and concrete. T. 260.
On September 18, 2006, medical consultant Jim Takach reviewed treating or examining
source statements regarding Plaintiff’s physical capacities and assessed the following limitations:
occasionally lift and/or carry 20 pounds, frequently lift 10 pounds, stand and/or walk about 6 hours
in an 8 hour work day, sit for a total of about 6 hours in an 8 hour work day, unlimited pushing
and/or pulling. T. 263. Plaintiff could occasionally climb ramp/stairs, ladder/rope/scaffolds, balance,
stoop. T. 264. Her near and far acuity, depth perception, accommodation, color vision and field of
vision are limited. T. 165. Her exposure to extreme cold, extreme heat, wetness, humidity, noise
vibration and fumes are unlimited but she should avoid concentrated exposure to hazards such as
machinery and heights. T. 266. Dr. Takach affirmed that Plaintiff could do light duty. T. 269.
The Court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
he is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits his physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the Residual Functional Capacity (“RFC”) to perform his
past relevant work; and (5) if the claimant cannot perform his past work, the burden of production
then shifts to the Commissioner to prove that there are other jobs in the national economy that the
claimant can perform given his age, education, and work experience. Pearsall, 274 F.3d at 1217;
20 C.F.R. § 404.1520(a), 416.920(a). If a claimant fails to meet the criteria at any step in the
evaluation, the process ends and the claimant is deemed not disabled. Eichelberger v. Barnhart, 390
F.3d 584, 590-91 (8th Cir. 2004).
The ALJ determined that the claimant met the insured status requirements through June 30,
2010, that she had not engaged in substantial gainful activity since April 28, 2006, and that she had
severe impairments of insulin dependent diabetes mellitus with neuropathy; depression; obesity;
essential hypertension; hepatitis C; and cataract, right eye. T. 79. The ALJ found, however, that
the claimant did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. T. 82. The ALJ
further found that Plaintiff’s allegations regarding her limitations were not fully credible, and that
the Plaintiff retained the residual functional capacity to perform a wide range of light work. T. 84,
Plaintiff filed this claim contending that the ALJ: failed to properly develop the evidence,
failed to consider evidence which fairly detracted from her findings, failed to apply the proper legal
standards and failed to satisfy the burden of proof at the 5th step of the Sequential Evaluation
Process. Pl.’s Br. At 7, 9, 10, 15.
Substantial Evidence Supports the ALJ’s RFC Finding
The ALJ found that the Plaintiff had the residual functional capacity to perform light work.
T.84. Specifically, she found that she was able to lift and carry 10 pounds frequently and 20 pounds
occasionally; sit, stand, and/or walk for a total of 6 hours out of an 8 hour workday; occasionally
stoop, bend, crouch, crawl, kneel, balance, and climb ramps and/or stairs but never climb scaffolds,
ladders, or ropes.
She should never be exposed to extreme cold, heat, or wetness; unprotected
heights, dangerous equipment, or machines; do no driving (secondary to syncope and vision); and
do no work requiring fine visual acuity; however, she is able to finger and handle items the size of
silverware. From a mental standpoint, she is able to perform activities with non-complex simple
instructions that require little judgment; that are routine, repetitive, and learned by rote with few
variables; where superficial contact is incidental to work with public and co-workers; and where
supervision is concrete, direct, and specific. Id.
A claimant’s RFC is the most she can do despite her limitations. 20 C.F.R. § 404.1545(a)(1).
The ALJ determines a claimant’s RFC based on “all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his or her
limitations.” Masterson, 363 F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus,
although the ALJ bears the primary responsibility for determining a claimant’s RFC, there must be
“some medical evidence” to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes
v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000).
The Court notes that Plaintiff appears to place
the burden of proof on the Commissioner. It is the claimant, however, who bears the burden of
proving her physical restrictions and/or residual functional capacity. See Geoff v. Barnhart, 421 F.3d
785 (8th Cir. 2005).
In developing the record, the Commissioner is required to obtain additional medical
examinations and/or testing only if the record does not provide sufficient medical evidence to
determine whether the claimant is disabled. See Barrett v. Shalala, 38 F.3d 1019 (8th Cir.
1994)(citing, in part, 20 C.F.R. 404.1519a(b)). See also Dozier v. Heckler, 754 F.2d 274(8th Cir.
1985)(reversible error not to order consultative examination when such evaluation is necessary to
make informed decision). 20 C.F.R. 404.1519 a(b) identifies several instances in which additional
medical examinations an/or testing is warranted. They include the following: (1) where the
additional evidence needed is not contained in the records of the claimant's medical sources; or (2)
where a conflict, inconsistency, ambiguity, or insufficiency in the evidence must be resolved and the
Commissioner is unable to do so by re-contacting the medical sources.
The ALJ made an exhaustive review of Plaintiff’s medical records (those provided by
Plaintiff and those provided by the Commission) and determined, after recording all her complaints
and resulting diagnoses, that Plaintiff was under multiple severe impairments: insulin dependent
diabetes mellitus with neuropathy, depression, obesity, essential hypertension, hepatitis C and
cataract. T. 79. It is disingenuous for Plaintiff to argue that the ALJ did not consider the effects and
limitations of these conditions and their concomitant symptoms when she in fact determined that
each diagnosis, separately and together, constituted severe impairments.
The ALJ’s RFC is consistent with (and in fact more generous than) mental and physical
RFCs from Dr. Donahue and Dr. Takach, respectively. While an RFC assessment from a treating
doctor would be preferable, it is not an absolute requirement. At any rate, the record shows that
Plaintiff did not seek advice or treatment from any doctors in the time leading up to or immediately
after her claim of disability and in fact did not see a doctor at all until two weeks before her hearing.
T. 294-304. Plaintiff was diagnosed with both diabetes and hepatitis in 1996, but did not produce
any of the medical records from that diagnosis. As the Commissioner points out ,since there are no
records of treating physicians, there are no conflicts between Agency and private doctors. D.’s Br.
The ALJ was put on notice at the hearing that Plaintiff was going to see an ophthalmologist
at a later date and she agreed to hold the record open for the eye exam results. T. 57. The ALJ and
the VE went to great lengths to narrow down occupational possibilities based on varying degrees of
acuity. T. 59-64. The ALJ specifically considered the results of that examination (myopia and legal
blindness in the right eye) in her opinion. T. 82. Plaintiff had already testified to her nearsightedness
and thick floaters. T. 48. The diagnosis did not change the facts upon which the VE testified and
the ALJ based her RFC.
Plaintiff contends that the ALJ failed to consider evidence which fairly detracted from her
findings. Pl’s Br. 9. She argues that the ALJ failed to consider her limitations brought about by
fluctuations in blood sugar, problems with upper extremities, fatigue and obesity. Id. She points to
no medical evidence that these conditions imposed any limitations on her ability to work, however.
At the hearing, Plaintiff’s attorney questioned her about her blood sugar, eliciting testimony
that her blood sugar fluctuates and she is getting used to new medicine and dosing. T. 50-51. She
did not, however, testify to any effects her blood sugar has on her ability to work.
With respect to upper extremity functioning, none of Plaintiff’s claims of impairment could
be verified. According to Dr. Ross all her limb functions were acceptable except that she had
difficulty walking on her left toe and could only do 1/3 squat. T. 274.
In her testimony, Plaintiff attributed her fatigue to her hepatitis C. T. 51. She did not,
however, complain to any physician or seek treatment for fatigue. The only indication in the record
that she suffered from fatigue is located in her Disability Determination For Social Security Pain and
Other Symptoms form, where she checked “YES” in response to the question, “Do you suffer from
unusual fatigue?” T. 168. She wrote that the date she first noticed it was “about Sept. 2002"). Id.
Plaintiff’s alleged disability onset date was April 28, 2006, and her last date of work was May 3,
2006, which means she continued to work full time for over 3 years, despite suffering from what she
calls “unusual fatigue.” See Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008)(Plaintiff worked
for over four years with “extreme fatigue” but did not mention fatigue, or any other side effect of
medication, when she quit her job; ALJ concluded that plaintiff’s medication side effects were not
significant enough to prevent her from working, and that her subjective complaints in general were
inconsistent with the record).
Although Plaintiff's doctors noted that she was obese and urged her to lose weight, no
physician indicated that Plaintiff's obesity limited her ability to work. See also Forte v. Barnhart,
377 .3d 892, 896 (8th Cir. 2004)(although treating doctors noted claimant was obese and should lose
weight, none suggested obesity imposed additional work-related limitations, and claimant did not
testify that obesity imposed additional restrictions).
Plaintiff argues that the ALJ improperly substituted her own opinions about the medical
evidence in establishing Plaintiff’s RFC instead of relying on medical evaluations. The Court
disagrees, for there was substantial evidence in the record to support the ALJ’s conclusion that
Plaintiff was not disabled.
The ALJ is responsible for determining a claimant’s RFC, a
determination that must be based on medical evidence that addresses the claimant’s ability to
function in the workplace. Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). In this case, there
was substantial evidence in the record upon which the ALJ could make an informed decision. There
were many pages of treatment records covering a multi-year period of time. There were results of
medical tests and procedures. There were disability and function reports completed by the Plaintiff.
There were reports from reviewing physicians. There was the transcript of a hearing at which
Plaintiff was questioned by her experienced attorney and an Administrative Law Judge. The ALJ is
permitted to issue a decision without obtaining additional evidence as long as the record is sufficient
to make an informed decision. See Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001); Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). Absent unfairness or prejudice, which Plaintiff has not
demonstrated, remand is not appropriate. Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995). A
fair reading of the ALJ’s decision supports a conclusion that the record was properly developed and
that she properly considered all the evidence in reaching her decision of Plaintiff’s residual
The ALJ Properly Considered Plaintiff’s Credibility
Social Security Ruling 96-7p clarifies the two-step process by which the ALJ must evaluate
symptoms, including pain, to determine their limiting effects on a claimant. See, also 20 C.F.R. §§
404.1529 and 416.929. First, the ALJ must establish whether the claimant's medically determinable
medical and psychological conditions could reasonably be expected to produce the claimant's
symptoms. SSR 96-7p. Once the ALJ finds that the conditions could be expected to produce the
alleged symptoms, the ALJ must evaluate the intensity, persistence, and severity of the symptoms
to determine the extent to which they prevent the claimant from performing basic work activities.
Id. Whenever the intensity, persistence or severity of the symptoms cannot be established by
objective medical evidence, the ALJ must assess the credibility of any statements made by the
claimant to support the alleged disabling effects. The Ruling sets forth the factors that the ALJ must
consider in assessing the claimant's credibility, emphasizing the importance of explaining the reasons
supporting the credibility determination. The Ruling further directs that the credibility determination
must be based on a consideration of all of the evidence in the case record. Id.
As part of the determination of RFC, after reviewing the medical records, the ALJ determined
that Plaintiff’s medically determinable impairments could reasonably be expected to produce her
alleged symptoms, but that her statements concerning the intensity, persistence and limiting effects
of these symptoms were not entirely credible. T. 84-85. An ALJ may not disregard a claimant’s
subjective complaints solely because the objective medical evidence does not fully support them.
See Polaski v. Heckler, 739 F.2d 1320, 1332 (8th Cir. 1984). The ALJ is required to take into
account the following factors in evaluating the credibility of a claimant’s subjective complaints: (1)
the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage,
effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5)
functional restrictions. See Id.
The ALJ must make express credibility determinations and set
forth the inconsistencies in the record which cause him to reject the plaintiff’s complaints.
Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004). However, the ALJ need not explicitly
discuss each Polaski factor. Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). The ALJ
only need acknowledge and consider those factors before discounting a claimant’s subjective
complaints. Id. The issue is not whether Plaintiff suffers from any pain, but whether her pain is so
disabling as to prevent the performance of any type of work. McGinnis v. Chater, 74 F.3d 873, 874
(8th Cir. 1996). In Polaski, the Eighth Circuit set forth the following pain standard:
The adjudicator may not disregard a claimant’s subjective complaints
solely because the objective medical evidence does not fully support
them. The absence of an objective medical basis which supports the
degree of severity of subjective complaints alleged is just one factor
to be considered in evaluating the credibility of the testimony and
complaints. 739 F.2d at 1322.
Questions of credibility are the province of the ALJ as trier of fact in the first instance.
Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995). The ALJ need not discuss every
Polaski factor if he discredits Plaintiff’s credibility and gives good reason for doing so. If the ALJ
gives good reasons for finding Plaintiff not credible, then the court should defer to his judgment
when every factor is not explicitly discussed. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir.
The ALJ recognized the prevailing legal standard in considering Plaintiff’s subjective
complaints; specifically, the ALJ cited Social Security Rule 96-7p and took into account the Polaski
factors. The ALJ’s credibility analysis was proper. She made express credibility findings and gave
multiple valid reasons for discrediting Plaintiff’s subjective complaints. Plaintiff’s own reports
concerning her daily activities undermine her claim of disability. The ALJ found that they do not
suggest significant physical or mental restrictions. Evidence contained in the file indicates the
Plaintiff is able to care for her own personal needs, perform some household chores, play with pets,
play computer games, prepare meals, walk, ride, shop, pay bills and manage money. T. 53, 54.152159. There is nothing to indicate that the ALJ gave too much, or too little, weight to any of
With regard to the duration, frequency and intensity of her pain, the ALJ noted that
psychological tests results indicated possible exaggeration of some symptomatology. T. 85.
As to the dosage, effectiveness, and side effects of Plaintiff’s medication, the ALJ found that
Plaintiff has been inconsistently compliant with treatment of her diabetes (consistently running out
of insulin, forgetting to take pills on time). T. 85, 154. Plaintiff argues in her brief that the reason
she is inconsistent with her insulin is that she cannot afford it. Pl.’s Br. at 10-11. The Court notes
that despite a citation to Plaintiff’s testimony for this proposition, she did not testify to that effect,
rather she said that she is limited to the brands of medicine the clinic has available or can order for
her. T. 57. Regardless, at the time of and subsequent to the ALJ hearing, Plaintiff was in fact under
the care of River Valley Christian Clinic, at no cost to her. See Murphy v. Sullivan, 953 F.2d 383,
386-87 (8th Cir.1992) (rejecting claim of financial hardship where there was no evidence that
claimant attempted to obtain low cost medical treatment or that claimant had been denied care
because of her poverty); Hutsell v. Sullivan, 892 F.2d 747, 750 n. 2 (8th Cir.1989) (noting that "lack
of means to pay for medical services does not ipso facto preclude the Secretary from considering the
failure to seek medical attention in credibility determinations.") (internal quotations omitted). There
is evidence that Plaintiff sought out low-cost or indigent medical services and that they were
available and in fact provided to her.
Plaintiff testified that she does not want to take antidepressants (1) because they seemed to
make it worse when she was on them and (2) out of fear of possible side effects to her liver, but she
told Dr. Shry that she stopped taking her antidepressant because it made her feel “falsely happy.”
T. 55, 85, 186. Plaintiff testified that she would probably not undergo a liver biopsy because she
would not go through with the prescribed treatment (“like chemotherapy”). T. 56. Physicians have
consistently advised her to follow a diabetic diet, properly exercise, and take medications as
prescribed. In addition to offering inconsistent answers on the question of medication, Plaintiff’s
responses and reactions lead to the issue the ALJ pointed out that if the Plaintiff’s impairments were
of the severity she complained, she would likely be receptive to appropriate treatment measures and
comply with such treatment.
The ALJ noted further with respect to Plaintiff’s credibility that Plaintiff had been
incarcerated on numerous occasions for drug related felony charges and convictions and had a
lengthy history of substance abuse, for which she had received inpatient and outpatient treatment.
For these reasons, the court finds that the ALJ’s treatment of Plaintiff’s subjective
complaints conforms to the requirements of Polaski. The ALJ’s findings are supported by
substantial evidence on the record as a whole.
The ALJ Properly Relied On Vocational Expert Testimony
The ALJ found that Plaintiff was not disabled because she was able to perform other work.
She based her determination largely on the testimony of the VE. T. 86. Ordinarily, the
Commissioner can rely on the testimony of a VE to satisfy its burden of showing that the claimant
can perform other work. Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008); Porch v. Chater, 115
F.3d 567, 571 (8th cir. 1997); see also Guilliams v. Barnhart, 393 F.3d 798, 804)(8th Cir.
2005)(stating that “[t]he commissioner may rely on a vocational expert’s response to a properly
formulated hypothetical question to show that jobs that a person with the claimant’s RFC can
perform exist in significant numbers”.)
Joe Thomas, a Vocational Expert, appeared and testified at the administrative hearing. T.
45-47, 58-68. He identified Plaintiff’s prior relevant work as a handpacker as light, unskilled, and
as a paralegal as light, skilled. T. 46. Mr. Thomas stated that Plaintiff was not able to return to her
prior relevant work. T. 59. The ALJ posed a hypothetical question asking Mr. Thomas what jobs
would be available for a person of the same age, education and work experiences as the Plaintiff, and
provided the following physical and mental limitations:
light exertional level
able to lift and carry occasionally 20 pounds, frequently 10 pounds
able to sit six out of eight hours
able to stand and/or walk six out of eight hours
no fine visual acuity due to blurry vision
no computer work
no driving, secondary to vision
no climbing of scaffolds, ladders or ropes, secondary to vision
keep away from unprotected heights, dangerous equipment or machinery
avoid extreme cold, heat and wetness
only occasional climbing of ramps, stairs, stooping, bending, couching, crawling, kneeling
unskilled, non-complex, simple instructions, little judgment, of a routine, repetitive type,
which can be learned by rote with few variables
no more than superficial contact, incidental to work with the public and co-workers
concrete, direct, specific supervision
The ALJ further refined the RFC to provide for Plaintiff’s reduced visual acuity due to her
poor vision, limiting her to seeing and handling items the size of silverware. T. 61. Mr. Thomas
indicated that such a person would still be able to perform work as a bench assembler. T. 62.
The hypothetical questions posed by the ALJ in this case incorporated each of the physical
and mental impairments that the ALJ found to be credible, and excluded those impairments that were
discredited or that were not supported by the evidence presented.
Accordingly, the ALJ’s
determination that Plaintiff could still perform work that exists in significant numbers in the national
economy is supported by substantial evidence.
Having carefully reviewed the record, the undersigned finds that substantial evidence
supports the ALJ's determinations at each step of the disability evaluation process, and thus the
decision should be affirmed. Accordingly, Plaintiff’s complaint should be dismissed with prejudice.
ENTERED this 13th day of July, 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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