Stone v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on September 15, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

TAMMY STONE
v.

PLAINTIFF
Civil No. 10-02126

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Tammy Stone, appeals from the decision of the Commissioner of the Social

Security Administration denying her claims for 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 10, 2008, alleging a
disability onset date of December 31, 2006, due to plantar fasciitis, high blood pressure, anxiety
and bronchial asthma. T. 158, 159, 164. At the time of the onset date, Plaintiff was forty one
years old and was a high school graduate. T. 111, 171. She had past relevant work as a heavy
equipment operator and truck unloader. T. 165. Plaintiff’s applications were denied at the initial
and reconsideration levels. T. 88, 91, 98, 100. At Plaintiff’s request, an administrative hearing
was held in Clarksville, Arkansas, on June 3, 2009, at which Plaintiff and a vocational expert
testified. T. 34-66. Plaintiff was represented by counsel. Id. Administrative Law Judge

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(“ALJ”) Larry D. Shepherd issued an unfavorable decision on December 2, 2009, finding that
Plaintiff was not disabled within the meaning of the Act. T. 74-83. On June 24, 2010, the
Appeals Council found no basis to reverse the ALJ’s decision. T.1. Therefore, the ALJ’s
December 2, 2009, decision became the Commissioner’s final administrative decision.
II.

Relevant Medical History
On September 11, 2006, Plaintiff went to River Valley Primary Care Services (RVPCS)1

in Ratcliff, Arkansas, for the purposes of getting medication and establishing a relationship with
the clinic, having recently moved to the area. She claimed to have a history of sinusitis, asthma,
migraine headaches, depression and anxiety disorder NOS. She told examiner Tonya Beineman,
APN, that she was coughing and wheezing and that she smoked one half to one pack of
cigarettes each day. She reported sleep disturbances, as well. Ms. Beineman noted chronic
wheezing in Plaintiff’s lungs, with normal rhythm and depth. Plaintiff’s mood was empty,
frustrated, unhappy and depressed, but her mental status was normal. Ms. Beineman assessed
allergic bronchitis, migraine headache, moderate recurrent major depression and anxiety
disorder, NOS. She gave Plaintiff samples of Proventil MDI (asthma inhaler), Seroquel (antidepressant) and Zomig (migraine medication) and advised her to return for follow up in one
week. T. 242-243.
On September 18, 2006, Plaintiff returned to RVPCS for follow up, complaining of dizzy
spells and nausea from increasing her dosage of Seroquel.

She complained of continued

headache and sinus pain, swollen glands, earache, nasal passage blockage, wheezing, restless
legs, anxiety, high irritability and sleep disturbances. She reported no depression or tiredness.
Ms. Beineman noted normal respiration and normal mental status. She assessed ear infection,

1

“River Valley Primary Care Services is a non-profit Federally Qualified Health Center that provides affordable
healthcare for everyone, regardless of ability to pay.” http://www.rvpcs.org/, cite last visited September 6, 2011.

2

insomnia, allergic rhinitis, migraine headache, restless leg syndrome and bipolar disorder NOS.
Ms. Beineman advised Plaintiff to continue her current medications and prescribed Cipro
(antibiotic), Trazadone (anti-depressant) and Requip (for restless leg syndrome). Plaintiff was
advised to return in ten days. T. 279-281.
On October 3, 2006, Plaintiff returned to RVPCS complaining of earache, cough, chest
congestion and dry mouth. She reported that her anxiety symptoms had improved while taking
the Seroquil and Trazadone but that she was having sleep disturbances. Ms. Beineman found her
respiration and mental status to be normal and assessed ear infection, allergic rhinitis and asthma.
She prescribed Proventil, Singulair (treats allergy symptoms and asthma), Amoxicillin and
Diflucan (antibiotics), and advised Plaintiff to return for reexamination in two weeks. T. 277279. Plaintiff returned to the clinic on October 12 and was examined and treated for her ear
infection by Naomi Hawkins, APN and John Williams, MD. At this visit Plaintiff reported
anxiety and high irritability, but not depression or sleep disturbances. T. 275-276.
On November 28, 2006, Plaintiff returned to RVPCS complaining that her anxiety and
stress had gotten worse over the last week and that Seroquel had been working well until the
holidays. Ms. Beineman noted Plaintiff was in no acute distress and did not appear depressed.
Her mental status was normal. Ms. Beineman assessed Generalized Anxiety Disorder 2 and
increased Plaintiff’s dosage of Seroquel, advising her to return in one week. T. 274-275.
On December 4, 2006, Plaintiff returned to RVPCS claiming that her mood was better
but that she felt tired and wanted to sleep all the time. Ms. Beineman found her to be in no acute
distress with normal mental status. She assessed feelings of weakness, acute sinusitis and bipolar

2

The essential feature of Generalized Anxiety Disorder is excessive anxiety and worry occurring more days than not
for a period of at least six months, about a number of events or activities. Diagnostic and Statistical Manual of
Mental Disorders 300.02 (American Psychiatric Association, ed., 4th ed. 2000).

3

disorder, NOS. She increased Plaintiff’s dosage of Seroquel and prescribed Cipro, Diflucan and
Albuterol (asthma), advising Plaintiff to return in one week. T. 272-274.
On November 12, 2006, Plaintiff returned to RVPCS, reporting no anxiety, depression or
sleep disturbances. Ms. Beineman found her to be in no acute distress with normal mental status.
She did note occasional wheezing, but Plaintiff’s respiration was normal.

Ms. Beineman

assessed sinusitis, asthma with acute exacerbation and bipolar disorder, NOS. She discontinued
Plaintiff’s use of Singulair, gave her samples of Allerx PE (antihistamine) and E-mycin
(antibiotic) and prescribed Seroquel. T. 271-272.
On January 22, 2007, Plaintiff returned to RVPCS wanting to talk about her medications.
She complained of fatigue, cough, wheezing, and itchy ears. Plaintiff reported no anxiety,
depression, or sleep disturbances. Ms. Beineman noted normal respiration and mental status.
Plaintiff’s blood pressure was 162/92.
hypertension.

Ms. Beineman assessed ear infection and essential

She prescribed Prednisone and Nystatin-triamcinolone (topical steroids) and

Cipro, and ordered lab work. T. 268-269.
On January 29, 2007, Plaintiff returned to RVPCS to follow up on her lab work. She said
that her allergy symptoms were getting worse after having a new cat in her home for the past few
months. Plaintiff reported feeling tired or poorly and having gained 35 pounds over the past six
months. She suffered from wheezing, dizziness and sleep disturbances. Her blood pressure was
162/98. Ms. Beineman recorded that Plaintiff was in no acute distress and her mental status was
normal.

She assessed isolated blood pressure elevation, essential hypertension and upper

respiratory fungal infection. Ms. Beineman ordered blood tests and gave Plaintiff samples of and
a prescription for Claritin (antihistamine) in addition to steroid injections, advising her to return
for reexamination in one week. T. 266-268.

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On February 5, 2007, Plaintiff returned to RVPCS. She was no longer dizzy or coughing,
but she was still wheezing. She was in no acute distress and her mental status was normal. Her
blood pressure was 138/80. Ms. Beineman assessed that her blood pressure was elevated and
continued the prescriptions for her current medications, including Hydrochlorothiazide (HCTZ) 3
(high blood pressure). She advised her to return to the clinic in three months. T. 264-266.
On February 15, 2007, Plaintiff returned to RVPCS complaining of multiple joint pains
and a rash she noticed while waiting to see Ms. Beineman. She felt the HCTZ was making her
arms and legs feel weak, and reported feeling tired or poorly. Plaintiff was wheezing, but in no
acute distress with normal respiration and mental status. Ms. Beineman assessed wheezing and
educated Plaintiff about a metered dose inhaler for asthma, counseling her to stop smoking. She
gave her samples of Lisinopril (blood pressure) and discontinued HCTZ, advising her to return in
two weeks. T. 263-264.
On March 3, 2007, Plaintiff returned to RVPCS complaining of a cough and chronic
headache in addition to weight gain despite not eating any more or less than before. She reported
not feeling tired or poorly. Ms. Beineman recorded that “the patient is definitely improved
regarding her bipolar… [and] significantly obese and deconditioned re her weight and asthma.”
Her respiration was loud and raspy with wheezing heard throughout the lungs. Her mental status
was normal and she “appear[ed] to be reasonably stable.” Ms. Beineman assessed essential
hypertension and bipolar disorder NOS. She advised Plaintiff to return to the clinic if her
conditions worsened or new symptoms arose. The chart was also electronically signed by John
R. Williams, MD. T. 261-263.

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The records do not indicate who initially prescribed this medication for Plaintiff or when it was first prescribed.

5

On May 2, 2007, Plaintiff returned to RVPCS to get refills and talk about her
medications. She reported that she had stopped taking Seroquel because it caused her to gain
weight. She was feeling a lot of stress, restlessness, nervousness, anxiety with trouble breathing,
chest pain or discomfort, rapid heartbeat, excessive sweating, high irritability, hostility,
impulsivity, euphoria, hypersensitivity, insomnia, loss of interest in friends and family and lack
of energy. She reported having no depression and that while her anxiety interfered with her
social activities it did not interfere with her work. Ms. Beineman noted that Plaintiff was in no
acute distress and her respiration and mental status were normal.

She assessed essential

hypertension, asthma and bipolar disorder, manic, with psychotic features.

Ms. Beineman

prescribed Lisinopril for Plaintiff’s high blood pressure and Lamictal for bipolar disorder and
advised her to return for reexamination in one to two months. T. 259-261.
On June 11, 2007, Plaintiff returned to RVPCS worried that her blood pressure was high.
She had continued smoking one half to one pack of cigarettes a day. She was experiencing
anxiety, headaches, palpitations, nausea and dizziness. Her blood pressure was 168/92. She had
not taken the Lamictal Ms. Beineman prescribed because she had been unsure of the correct
dosage. Plaintiff reported having no depression or high irritability. Dr. Shawn Miller heard
wheezing in Plaintiff’s chest and noted that her mental status was normal. She diagnosed
essential hypertension (poor control) and episodic mood disorders. Dr. Miller counseled Plaintiff
to stop smoking, prescribed Lisinopril and Lamictal and advised her to return for reexamination
in one month. T. 256-258.
On July 9, 2007, Plaintiff returned to RVPCS to follow up on her blood pressure
medication.

She also complained of anxiety, insomnia and gastrointestinal reflux disease

(GERD). She was feeling tired and coughing and wheezing, but had no depression. She

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continued smoking. She was in no acute distress and her mental status and respiration were
normal. Ms. Beineman assessed essential hypertension (poor control) and generalized anxiety
disorder. She prescribed Diflucan for an infection, Albuterol, Amitriptyline (antidepressant),
Ranitidine (ulcers) and advised her to monitor her blood pressure and return for reexamination in
two months. T. 254-255.
On September 10, 2007, Plaintiff returned to RVPCS for medication refills. She reported
anxiety but no depression or sleep disturbance and that she was doing well on Elavil
(amitriptyline). She was experiencing joint pain but her nausea and chest pain were gone. She
was still wheezing and experiencing heart palpitations. Her blood pressure was 118/80. Ms.
Beineman noted that Plaintiff was in no acute distress and that her respiration and mental status
were normal. She assessed asthma, idiopathic peripheral neuropathy and generalized anxiety
disorder and counseled Plaintiff to stop smoking and eat a proper diet. Ms. Beineman prescribed
neo/Polyb/HC (antibiotic for ear itchiness), Atarax hydrochloride (antihistamine/tranquilizer),
Combivent (inhaler used to treat chronic obstructive pulmonary disease), Advair Diskus (asthma
inhaler), Singulair and Albuterol and advised Plaintiff to return for reexamination in three
months. T. 251-254.
On September 28, 2007, Plaintiff returned to RVPCS complaining of cough and
congestion and a hurt hand. She claimed her asthma inhaler was not helping much and the
antihistamine/tranquilizer was not controlling her tremor. She was still smoking and was not
feeling tired or experiencing sinus or chest pain or dizziness. She reported anxiety but no sleep
disturbances. She was wheezing but her respiration and mental status were normal. Her blood
pressure was 122/80. Plaintiff told Theodora L. Short, APN, that Amitriptyline was helping with

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her headaches. Ms. Short prescribed antibiotics and pain relievers for Plaintiff’s hurt hand and
Celexa (antidepressant) for anxiety and advised her to return in two weeks. T. 249-250.
On December 6, 2007, Plaintiff returned to RVPCS to get medication refills and follow
up on her asthma. She told Michael Guyer, MD, that she was doing well and had no new
complaints. Her respiration and mental status were normal. Dr. Guyer assessed hypertension,
probable asthma and anxiety disorder NOS, and refilled her hydroxyzine hydrochloride,
Combivent, amitriptyline, Singluair, Lisinopril, Claritin, and Advair prescriptions. He gave her a
flu shot and advised her to return for reexamination as needed. T. 248-249.
On March 13, 2008, Plaintiff returned to RVPCS to get refills and reported that she was
doing well. She told Dr. Guyer that her heels had been hurting for the past few months and that
she did a lot of standing at her work. Dr. Guyer examined her feet and found tenderness in both
heels but no swelling or inflammation. He assessed Plaintiff with plantar fasciitis 4 and told her
to get shoe supports, lose weight, and limit prolonged periods of standing. He prescribed pain
relievers and advised her to return for reexamination as needed. T. 246-247.
On May 30, 2008, Plaintiff stopped working her part time job. On June 10 she filed for
Social Security benefits.
On June 11, 2008, Plaintiff returned to RVPCS to get medication refills. She did not get
shoe inserts and reported that her heel pain was not getting better. She reported continued
smoking, coughing up sputum, wheezing and daily use of an asthma inhaler. Her headaches
were improving with Excedrin migraine and amitriptyline, and Zantac was helping her heartburn.
Her blood pressure was 130/86. Dr. Miller noted that Plaintiff’s respiration and mental status

4

Plantar fasciitis involves pain and inflammation of a thick band of tissue, called the plantar fascia, that runs across
the bottom of your foot and connects your heel bone to your toes. Plantar fasciitis is one of the most common
causes of heel pain. http://www.mayoclinic.com/health/plantar-fasciitis/DS00508, site last visited September 7,
2011.

8

were normal and assessed plantar fasciitis, hypertension, and asthma. She gave Plaintiff an
information sheet about plantar fasciitis, advised her to stop smoking, and refilled her current
prescriptions for asthma, heartburn and allergies. T. 244-146.
On June 12, 2008, Plaintiff filed for Social Security benefits, claiming that she became
short of breath, that her feet hurt so much she could hardly walk or stand and that she was unable
to do physical work because of her asthma. T. 164. In her June 24, 2008, Pain and Other
Symptoms report, Plaintiff stated that she had suffered from unusual fatigue since October, 2006
and that she suffered from severe foot pain in booth feet, anxiety attacks, asthma and high blood
pressure. T. 186.
On July 8, 2008, Plaintiff went to Internal Medicine and Associates in Van Buren,
Arkansas, to establish care. Plaintiff told Yvonia Jeannie Finley, MSN, APN, that her feet hurt
really bad when she first gets up and after sitting for a long time. She reported taking one Elavil
at bedtime most nights, but needing two some nights to sleep. Ms. Finley assessed restless leg
syndrome, hypertension and plantar fasciitis and prescribed hydrochlorothiazide (high blood
pressure) and Doxepin (insomnia). She told Plaintiff to watch her blood pressure (128/98) and
return to the clinic as needed and in two months for a recheck. T. 300-301.
On July 11, 2008, Dr. Jim Takach undertook a physical residual functional capacity
assessment of Plaintiff. He reviewed her medical records and found a history of mild, wellcontrolled asthma on outpatient prescription medication, history of hypertension without defined
end organ damage, and history of uncomplicated plantar fasciitis receiving conservative
treatment. Dr. Takach found that Plaintiff can occasionally lift and/or carry twenty pounds and
frequently lift and/or carry ten pounds. She can stand and/or walk (with normal breaks) for a
total of about six hours in an eight hour workday and sit for a total of about six hours. Her

9

ability to push and/or pull is unlimited. She is limited to occasionally climbing, balancing and
stopping but can frequently kneel, crouch and crawl. She must avoid concentrated exposure to
fumes, odors, dusts, gases, poor ventilation, etc. but has no other environmental limitations. Dr.
Takach determined that Plaintiff would be limited to light duty work. T. 285-291.

At this time,

Plaintiff’s claims for Social Security benefits were denied.
On August 6, 2008, Plaintiff returned to Internal Medicine and Associates, where Ms.
Finley described her as “doing marvelously well” and having good blood pressure (130/76).
Plaintiff reported some dementia and not thinking straight, which Ms. Finley attributed to
increasing anxiety. Ms. Finley gave Plaintiff an asthma inhaler, increased her Doxepin and
added Abilify (one half tablet per day to adjust dopamine and serotonin as an addition to
antidepressants). Ms. Finley assessed hypertension, anxiety/depression and “? bipolar”. Plaintiff
left in no acute distress and was to return in thirty to sixty days. T. 298-299.
On September 11, 2008, Plaintiff underwent a mental diagnostic evaluation performed by
Terry L. Efird, Ph.D. Plaintiff told Dr. Efird that she had high anxiety and was “somewhat
bipolar”. She reported excessive worry and stress about financial matters and “everyday things.”
She claimed to be easily fatigued, restless, have difficulty concentrating and experienced muscle
tension, irritability and sleep disturbance. Plaintiff characterized her mood as “down most of the
time” and said she only got three to four hours of sleep a night and did not take naps. Her energy
was low due to asthma and she had gained fifty pounds as a result of her medications. Her
symptoms had been ongoing for about four years but had become worse over time; she had been
“stressing a lot more over the past year.” T. 343.

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Upon examination, Dr. Efird diagnosed Plaintiff with generalized anxiety disorder and
depressive disorder NOS and assigned a GAF 5 score of 50-60. Although Plaintiff reported being
“somewhat bipolar”, she denied experiencing extended periods of elevated mood and Dr. Efird
did not diagnose her with bipolar disorder. T. 346. Plaintiff told Dr. Efird that she could drive
unfamiliar routes and shop independently, although she tended to have anxiety attacks around a
lot of people and did not shop very long. She could handle her personal finances satisfactorily
and perform most activities of daily living. She described struggles with asthma and a decreased
level of motivation. She described her social interaction as visiting with her sister and a friend on
occasion, but tending to primarily stay home. Dr. Efird found that Plaintiff communicated and
interacted in a fairly basic, but reasonably socially adequate manner; communicated in a fairly
basic, but reasonably intelligible and effective manner; has the capacity

to perform basic

cognitive tasks required for basic work activities; showed no remarkable problems with
attention/concentration, persistence or pace of performance. T. 356.
On September 23, 2008, Dr. Ronald Crow, an internal medicine specialist, affirmed Dr.
Takach’s assessment as written. T. 351.
On September 24, 2008, Dr. Dan Donahue performed a psychiatric review of Plaintiff’s
affective disorder, anxiety-related disorder and personality disorder. He determined Plaintiff is
moderately restricted in activities of daily living, has moderate difficulties in maintaining social
functioning, moderate difficulties in maintaining concentration, persistence or pace and has
experienced no episodes of decompensation. T. 370. He found that Plaintiff is able to perform
5

According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Revision 2000), the
Global Assessment of Functioning Scale is used to report “the clinician's judgment of the individual's overall level
of functioning.” GAF scores of 41 to 50 reflect “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” Manual at 34. GAF scores of 51-60 indicate “[m]oderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” Id.

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semiskilled work where interpersonal contact is routine but superficial, e.g. grocery checker;
complexity of tasks is learned by experience; supervision required is little for routine but
detailed for non-routine. T. 358. At this time Plaintiff’s claims for Social Security benefits were
denied on reconsideration.
On October 7, 2009, Plaintiff appealed her August 1, 2008, disability report, claiming
increased depression since July, 2008. T. 223.
On October 8, 2008, Plaintiff returned to Internal Medicine and Associates for a followup examination. She had stopped taking Abilify because she believed it increased her blood
pressure. She reported being shaky and her nerves getting worse; she didn’t want to be around
people and she was experiencing muscle spasms.

Ms. Finley prescribed Cymbalta

(antidepressant) and Inderal (used to treat tremors and high blood pressure) to “take the edge off
of things” and added Flexeril (muscle relaxer) for muscle spasms. Plaintiff was taking Aleve
(over the counter non-steroidal anti-inflammatory drug) for other aches and pains. Ms. Finley
assessed chronic obstructive pulmonary disease, bipolar disorder and muscle spasms. Plaintiff
left in no acute distress with instructions to return in one month for a recheck. T. 386-387.
Also on October 8, Ms. Finley completed a physical residual functional capacity
questionnaire.

She reported diagnoses of hypertension, tremors, bipolar disorder, restless leg

syndrome, plantar fasciitis and anxiety, symptoms of which included pain in feet, difficulty in
breathing, anxiety and depression. She indicated that “medications may cause drowsiness and
dizziness.” T. 375. Ms. Finley stated that Plaintiff was unable to concentrate due to pain in her
feet and depression, which would constantly interfere with attention and concentration needed to
perform even simple work tasks. T. 376. She determined Plaintiff could sit more than two hours
at one time before needing to get up and could stand ten to fifteen minutes at a time before

12

needing to sit down or walk around; during an eight hour work day Plaintiff would be able to
stand/walk less than two hours and sit about two hours. Plaintiff would need to take a five
minute walk every thirty minutes and shift positions at will from sitting, standing or walking. T.
377. Ms. Finley reported that Plaintiff would need to take unscheduled breaks every thirty
minutes for five to ten minutes and could rarely lift less than ten pounds and never more. T. 378.
She limited Plaintiff to rarely climbing ladders or stairs and determined that she would have
“good days and bad days”, missing work more than four days per month. T. 379.
On October 10, 2008, Plaintiff visited Counseling Associates, Inc. in Clarksville,
Arkansas, to talk about “depression issues.” She complained of daily anxiety, panic, depressed
mood, mood swings and sleep problems, weekly inattention and morbid preoccupation, and
monthly nightmares of being pursued. Plaintiff told the clinician intern her problem was that
“basically…I don’t like being around people” and “all I want to do is sleep.” T. 397. When
asked about any major medical conditions or pain she listed asthma, and reported having been
diagnosed with bipolar disorder, anxiety and depression. T. 398. Plaintiff told the intern that
caffeine (she reported drinking a twelve-pack of Mountain Dew daily) may be substantially
contributing to her hand tremors, anxiety, sleeping problem, and stomach irritation. T. 400. The
intern assessed her primary diagnoses to be mood disorder, NOS, with secondary generalized
anxiety disorder and polysubstance dependence in full remission. He recommended individual
therapy for anxiety and depressed mood and assessed a GAF score of 55. T. 402.
On October 20, 2008, Plaintiff returned to RVCPS to get a flu shot, medication refills,
and follow up. She reported that hydrozyzine was not helping with her shakes. She was
coughing but not wheezing and she had no headache or sinus pain. She had an earache, sore
throat and heartburn but no nausea, vomiting or abdominal pain. She was having no sleep

13

disturbances and continued to smoke cigarettes.

Dr. Miller assessed hypertension, asthma,

migraine headache, and acute upper respiratory infection. She ordered a metabolic panel to test
Plaintiff’s calcium, a flu shot, and adjusted Plaintiff’s prescriptions, advising her to return in six
months. T. 394-395.
On December 9, 2008, Plaintiff returned to RVCPS complaining of a sore throat that
started that morning. Dr. Guyer noted that her respiration was normal and assessed pharyngitis
(inflammation of the back of the throat). He prescribed an antibiotic, Tylenol and Chloraseptic
throat spray and advised Plaintiff to stop smoking and return to the clinic as needed. T. 391-392.
On January 8, 2009, Plaintiff returned to Internal Medicine & Associates needing an
inhaler, “something for GERD” and wanting to lose weight.

Ms. Finley assessed GERD,

anxiety/depression, and muscle spasms; she prescribed Prilosec to prevent the production of acid,
Inderal for tremors, Flexeril for muscle spasms and gave her samples of Cymbalta, advising
Plaintiff to return as needed and for her regular follow up appointment. Ms. Finley noted on the
chart that Plaintiff’s lower left and right feet were improved. T. 384-385.
On April 15, 2009, Plaintiff returned to Internal Medicine & Associates for refills. She
thought her insomnia medication needed to be increased, as well. She reported having trouble
losing weight, but that Cymbalta was working well for her. Ms. Finley assessed hypertension
(and noted plaintiff’s “B/p doing good”), bipolar/anxiety/depression, weight issues and muscle
spasms. She refilled Plaintiff’s prescriptions and added Tenuate for weight loss, advising her to
return after having lab work done at the charity clinic in Ratcliff. T. 381-382.
On April 22, 2009, Plaintiff returned to RVPCS for refills on her inhalers and to have
blood drawn. Dr. Miller noted faint wheezing in Plaintiff’s lungs but that her respiration was

14

normal. She assessed hypertension, prescribed inhalers and Singulair for asthma and advised
Plaintiff to return in three months for reexamination. T. 389-380.
On October 19, 2009, Plaintiff returned to RVPCS for prescription refills and concern
about recent weight gain. She told Dr. Miller that because of the cost, she was only taking her
asthma medication regularly and trying to save her blood pressure medicine, but she continued to
smoke every day.

Dr. Miller assessed hypertension and asthma and prescribed asthma

medications, adding Symbicort to her regimen. Dr. Miller also instructed her to get an HIV test.
T. 404-405.
III.

Applicable Law
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

15

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).
IV.

Discussion
The ALJ determined that the claimant met the insured status requirements through

December 31, 2011, that she had not engaged in substantial gainful activity since December 31,
2006, and that she had severe impairments of plantar fasciitis, hypertension, asthma and mood
disorder. T. 76. 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 § 404, Subpart P, Appendix 1. T. 77. 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 unskilled, sedentary work with limitations. T. 78.

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Plaintiff filed this claim contending that the ALJ: failed to properly develop the evidence,
failed to consider evidence which fairly detracted from his findings, failed to apply proper legal
standards, and failed to satisfy the burden of proof at the fifth step of the Sequential Evaluation
Process. Pl.’s Br. at 7, 9, 10, 15.
A.

Substantial Evidence Supports the ALJ’s RFC Assessment
A claimant’s RFC is the most she can do despite her limitations.

404.1545(a)(1).

20 C.F.R. §

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 v. Barnhart, 390 F.3d 584, 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).
The ALJ found that Plaintiff has the residual functional capacity to lift and carry ten
pounds occasionally and less than ten pounds frequently, sit for about six hours during an eight
hour workday, and stand and walk for at least two hours during an eight hour workday. She
can occasionally climb, balance, stoop, kneel, crouch, and crawl and must avoid concentrated
exposure to dusts, fumes, gases, odors and poor ventilation. She can understand, remember and

17

carry out simple, routine, and repetitive tasks, and can have occasional contact with co-workers
and the general public. T. 78.
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This can be done
by re-contacting medical sources and by ordering additional consultative examinations, if
necessary. See 20 C.F.R. § 404.1512. The ALJ's duty to fully and fairly develop the record is
independent of Plaintiff's burden to press her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010). However, the ALJ is not required to function as Plaintiff's substitute counsel, but
only to develop a reasonably complete record. See Shannon v. Chater, 54 F.3d 484, 488 (8th Cir.
1995)("reversal due to failure to develop the record is only warranted where such failure is unfair
or prejudicial").
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. 404.1519a(b) identifies several instances in
which additional medical examinations and/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.

18

In this case the ALJ had available to him reports of treating professionals going back to
2006, including twenty three visits to River Valley Primary Care Services before the ALJ
hearing. The Agency ordered a consultative examination specifically to develop the record
regarding Plaintiff’s impairments. T. 343-347. The ALJ also had the opinion of three state
agency medical specialists, Plaintiff’s written statements to the Social Security Administration
and her testimony from the hearing.
Plaintiff complains that because the ALJ pointed out an inconsistency6 in Ms. Finley’s
medical treatment records, he was required to re-contact Ms. Finley for clarification before
“throwing out” her responses to a physical residual functional capacity questionnaire. Pl.’s Br. at
8. The ALJ’s determination was with regard to the amount of weight to be given to Ms. Finley’s
opinion evidence, (see discussion infra) not to the existence of any undeveloped, “crucial
issues.” See Id. Plaintiff has failed to establish that the medical records presented did not
provide sufficient medical evidence to determine the nature and extent of Plaintiff’s limitations
and impairments. Further, Plaintiff has failed to show she was in anyway prejudiced or treated
unfairly by the ALJ if the record was not in fact fully and fairly developed. The Court finds the
ALJ satisfied his duty to fully and fairly develop the record in this matter.
The record provides substantial evidence to support the ALJ’s RFC that Plaintiff can
perform less than a full range of sedentary, unskilled work. Medical records from River Valley
Primary Care Services show a history of asthma, high blood pressure and depression/anxiety for
which Plaintiff was provided care and treatment since at least September of 2006. Beginning in
March of 2008 she was also treated for and advised about the pain in her feet from plantar
fasciitis. The ALJ specifically considered each of Plaintiff’s alleged impairments and symptoms:
6

“For example, although nurse Finley found that the claimant can sit no more than about two hours per day, she
wrote in an August 6, 2008, treatment note that the claimant was ‘doing marvelously well.’ On April 15, 2009, she
wrote that the Cymbalta ‘…seems to be working well for her….’” T. 81.

19

The claimant alleged depression and anxiety, bronchial asthma, high blood
pressure, and plantar fasciitis. The claimant reported that she experiences the
following symptoms; shortness of breath, easy fatigability, foot pain, anhedonia,
and self- isolation/social withdrawal. The claimant asserted that her impairments,
and related symptoms, result in functional restrictions and difficulties with
activities of daily living….she asserted that she cannot walk or stand very long as
a result of foot pain and that she cannot do much physical work as a result of
asthma-related shortness of breath….she has to avoid cleaning chemicals; cannot
be in extreme climate conditions; cannot be around dust; and cannot sweep or
vacuum carpets. T. 78-79.

The ALJ separately discussed Plaintiff's impairments and subjective complaints, stating
that he considered “all symptoms and the extent to which [they] can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p.” T. 78. He further stated that
after “careful consideration of all of the evidence,” he found that Plaintiff’s medically
determinable impairments could reasonably be expected to cause the symptoms she alleged. Id.
The ALJ’s RFC is consistent with the medical evidence, which shows a history of mild,
well-controlled asthma, high blood pressure that was “doing marvelously well” and
uncomplicated plantar fasciitis warranting conservative treatment.

On numerous occasions

Plaintiff reported that her medications were relieving or diminishing her symptoms.

On

September 18, 2006, Plaintiff reported that she was experiencing no depression. T. 280. On
October 3, 2006, she told Ms. Beineman that Seroquel and Trazadone were helping her
insomnia. T. 278. On December 12, 2006, Plaintiff was experiencing no anxiety, depression
or sleep disturbance. T. 271. On March 5, 2007, Plaintiff reported being “definitely improved”
regarding her bipolar disorder. T. 261. On May 2, 2007, Plaintiff reported no depression and
told Dr. Miller that anxiety did not interfere with her ability to work. T. 259. On September
28, 2007, and June 11, 2008, Plaintiff reported that the medications were helping her

20

headaches. T. 250, 244. On December 6, 2007, and March 13, 2008, Plaintiff reported “doing
well.” T. 248, 246. At each assessment at River Valley Primary Care Services her respiration
and mental status were normal. “If impairment can be controlled by treatment or medication, it
cannot be considered disabling.” Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004),
quoting Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). Dr. Guyer told Plaintiff to limit
prolonged periods of standing at work to ease her foot pain, but other than that no physician
placed any restrictions on her activities.

T. 246-247.

Doctors Takach and Crow each

determined Plaintiff was able to perform light duty, but the ALJ found that the treating source
data was more consistent with an exertional limitation to sedentary work. The ALJ took
Plaintiff’s foot pain into consideration in limiting her to standing and walking less than two
hours a day.
Although Plaintiff reported to Dr. Efird high anxiety, worry, restlessness and stress, his
consultative examination also revealed that she could drive unfamiliar routes, shop
independently, handle personal finances, perform most activities of daily life satisfactorily and
interact with family and friends. T. 346. Dr. Efird found Plaintiff’s communication and
interaction to be reasonably socially adequate, intelligible and effective. She displayed the
capacity to perform basic cognitive tasks required for basic work like activities. She appeared
able to track and respond adequately at the examination and showed no remarkable problems
with attention or concentration during the evaluation. She completed most tasks within an
adequate time frame and showed no remarkable problems with mental pace of performance. Dr.
Efird determined her symptoms were consistent with diagnoses of generalized anxiety disorder
and depressive disorder, NOS, but that she did not experience extended periods of elevated
mood required for a diagnosis of bipolar disorder.

21

T. 345-346.

Social Security Medical

Consultant Dr. Donahue found only a few areas in which Plaintiff was “moderately limited,”
those being the ability to maintain attention and concentration for extended periods, the ability
to complete a normal work day and work week without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods, the ability to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes and the ability to set realistic goals or make plans independently
of others. He found that she was not significantly limited in any of the other categories of
mental functional capacity. T. 358. Dr. Donahue found Plaintiff to be only moderately limited
in performing activities of daily living, maintaining social functioning and maintaining
concentration, persistence or pace. T. 370. These findings are consistent with her medical
records of treatment for anxiety, depression, insomnia and self-isolation.
In this case, the ALJ did not find that Plaintiff’s impairments had no effect on her ability
to work. Instead, he concluded, based on the medical records and testimony, that Plaintiff could
only perform unskilled, sedentary work and that her mental impairments require a work setting
in which she is only required to understand, remember and carry out simple, routine and
repetitive tasks and to have only occasional contact with co-workers and the general public. T.
78.

As discussed above, there is substantial evidence in the record to support the ALJ’s

conclusion.
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. 78. An ALJ may not disregard
a claimant’s subjective complaints solely because the objective medical evidence does not fully

22

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. 2001).

23

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. T. 78. The ALJ’s credibility analysis was proper. He 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 specifically noted that while Plaintiff reported in her pain questionnaire that she is able to
walk only five minutes as a result of asthma, she indicated in her function report that she cooks
and does laundry for her husband. She prepares simple meals daily and performs light cleaning
tasks in addition to laundry. She cares for a pet and for her own personal needs, goes outside
daily, drives and shops in stores for thirty minutes to an hour.

T. 79. While Plaintiff testified

that her feet throbbed and it felt like walking on rocks, as recently as October 10, 2008, she
reported to her counselor at Counseling Associates, Inc. that the only medical condition or pain
management concern she had was asthma. T. 42, 398. The ALJ also noted that while Plaintiff
reported withdrawal and social isolation, she stated that she talks with her sisters two days a
week. Plaintiff continued to work part time at a diner until May 30, 2008, seventeen months
after her alleged disability onset date. Her story on that job varied; she told her counselor that
she had been unable to work since 2006 because of her asthma, but she told the Social Security
Agency and Dr. Efird that she left because the business closed. T. 397, 344, 164.

Finally,

Plaintiff told her counselor that she believed the twelve pack of Mountain Dew she drank every
day could be significantly contributing to the hand tremors, anxiety, sleeping problems, and
stomach irritation she was experiencing.

There is substantial evidence to support the ALJ’s

finding that her activities do not suggest significant physical or mental restrictions.

24

Plaintiff testified that her high blood pressure was controlled my medication. T. 49. She
did not get the shoe inserts that Dr. Guyer advised to relieve her foot pain. T. 244, 247. Despite
numerous complaints of coughing, wheezing, and upper respiratory infections, Plaintiff
continued to smoke cigarettes daily, significantly contributing to her asthma symptoms. Doctors
and nurses told her to stop smoking on several occasions, but she continued, testifying that
although she knows what it does to her health, it is “[her] drug to remain…calm.” T. 57-58.
There is no dispute that smoking has a direct impact on Plaintiff’s lung impairments. Failure to
follow prescribed treatment may be grounds for denying an application for benefits. “Kisling v.
Chater, 105 F.3d 1255, 1257 (9th Cir. 1997). Plaintiff testified that her medications make her
sleepy, make her heart beat “real quick” and give her dry mouth, but she told Dr. Efird that she
experienced no side effects from her prescribed medication. T. 45, 344. Review of the ALJ’s
decision, in light of the entire administrative record, shows that there were inconsistencies
between Plaintiff’s allegations of pain and the evidence as a whole. Buckner v. Astrue, 646 F.3d
549 (8th Cir. 2011). As a result, the ALJ did not err in evaluating Plaintiff’s credibility.
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.
Plaintiff alleges that the ALJ erred in giving little weight to the opinion of Ms. Finley and
great weight to the opinions of non-treating physicians and psychologists Dr. Donahue, Dr.
Takach and Dr. Crow. Pl.’s Br. at 12-13. On October 8, 2008, Ms. Finley had completed a
physical residual functional capacity questionnaire indicating that Plaintiff was incapable of even
“low stress” jobs because she was unable to concentrate due to pain in her feet and depression.
T. 376. Plaintiff claims that the ALJ was required to give great weight to Ms. Finley as a

25

“treating source” and that he substituted the opinions of sources “who may not even have
medical backgrounds for that of a treating doctor.” P.’s Br. at 14.
Ms. Finley is an Advanced Practice Nurse, not a licensed physician, despite Plaintiff’s
contentions to the contrary. In both her prehearing memorandum and in her brief to this Court,
Plaintiff referred to Ms. Finley as a doctor. T. 234; Pl.’s Br. 9, 14. Nonetheless, the Court
chooses to view these as editorial mistakes rather than an intentional attempt to mislead the
Court. That being said, while Ms. Finley is not an “acceptable medical source” for purposes of
20 C.F.R. § 404.1513(a) (setting out medical and other evidence of impairments), her opinion is
relevant as an “other medical source.” Id. at (d)(1). “In addition to evidence from the acceptable
medical sources listed ... we may also use evidence from other sources to show the severity of
your impairment(s) and how it affects your ability to work. Other sources include, but are not
limited to-(1) Medical sources not listed ... nurse-practitioners ...and therapists.” Id. (emphasis
added). As a nurse-practitioner, Ms. Finley fits the criteria of “other” medical sources, which are
appropriate sources of evidence regarding the severity of a claimant's impairment, and the effect
of the impairment on a claimant's ability to work. Id; see Shontos v. Barnhart, 328 F.3d 418, 427
(8th Cir. 2003).
The amount of weight given to a medical opinion is to be governed by a number of
factors including the examining relationship, the treatment relationship, consistency,
specialization, and other factors. Generally, more weight is given opinions of sources who have
treated a claimant, and to those who are treating sources. 20 C.F.R. § 1527(d). The regulations
provide that the longer and more frequent the contact between the treating source, the greater the
weight will be given the opinions. “When the treating source has seen you a number of times
and long enough to have obtained a longitudinal picture of your impairment, we will give the

26

source's opinion more weight than we would give it if it were from a nontreating source.” Id. at
(d)(2)(i). A treating source's opinion is to be given controlling weight where it is supported by
acceptable clinical and laboratory diagnostic techniques and where it is not inconsistent with
other substantial evidence in the record. Id. at (d)(2). Where controlling weight is not given to a
treating source's opinion, it is weighed according to the factors enumerated above. Id

Ms.

Finley saw Plaintiff on three occasions (July 8, 2008, August 6, 2008, and October 8, 2008) prior
to completing the physical residual functional capacity questionnaire. Compared to the twenty
three examinations and assessments provided by nurses and physicians at River Valley Primary
Care Services covering the period from September 2006 – April, 2009, this by no means
represents the “longitudinal treatment history” with Plaintiff that she proclaims it to be. Pl.’s Br.
at 5. Furthermore, there is nothing in Ms. Finley’s treatment notes to justify the extreme
restrictions she placed upon the Plaintiff.

Plaintiff began and ended each of her three

appointments with Ms. Finley in no acute distress; she received no laboratory diagnostic testing
and was described by Ms. Finley as “doing marvelously well”. T. 298, 300, 384. Ms. Finley’s
opinion that Plaintiff was incapable of any work at all is not only inconsistent with her own
treatment records, but with the records of the providers who treated Plaintiff regularly for over
two years. Those are the records that Dr. Crow, Dr. Donahue, and Dr. Takach based their
opinions on and they are entitled to great weight.
Finally, the Court notes that State agency medical or psychological consultants and other
program physicians, psychologists and other medical specialists are highly qualified physicians,
psychologists, and other medical specialists who are also experts in Social Security disability
evaluation. Therefore, administrative law judges must consider findings and other opinions of
State agency medical and psychological consultants and other program physicians,

27

psychologists, and other medical specialists as opinion evidence, except for the ultimate
determination about whether a person is disabled. See 20 C.F.R. §1527(f).
The ALJ did not err in assigning little weight to Ms. Finley’s residual functional capacity
conclusions.
B.

Substantial Evidence Supports the ALJ’s Determination That Plaintiff Can
Perform Other Work That Exists in Significant Numbers in the National
Economy.

After finding that Plaintiff was unable to perform her past relevant work, the ALJ
properly relied on vocational expert testimony to determine whether Plaintiff can perform other
work available in the national economy. T. 82. See 20 C.F.R. §§ 404.1566(e), 416.966(e)
(In determining disability, the Agency may use vocational expert testimony to determine
whether a claimant can perform other occupations). The ALJ asked the vocational expert the
following hypothetical question:
Please assume a younger individual with a high school education who can lift and
carry 20 pounds occasionally, 10 pounds frequently. Individual can sit for about
6 hours during an 8 hour work day, can stand and walk for about 6 hours during
an 8 hour work day. Individual can occasionally climb, balance, stoop, kneel,
crouch, and crawl. Individual is to avoid concentrated exposure to fumes, dust,
gases, odor, poor ventilation. Individual can understand, carry out, and remember
simple routine and repetitive tasks. Individual can have occasional contact with
coworkers and the general public. Based on my hypothetical, would there be jobs
available? T. 61-62.
The Vocational Expert responded that the hypothetical individual would be able to work
in three light duty, unskilled occupations: Office Helper (of which there are 200 jobs in
Arkansas and 7400 in the U.S.), School Bus Monitor (of which there are 130 jobs in Arkansas

28

and 16,000 in the U.S.) and Inspector, Hand Packager (of which there are 350 jobs in Arkansas
and 11,000 in the U.S.). T. 62-63.
The ALJ then proposed a second hypothetical question:
Please assume a younger individual with a high school education who can lift
and carry 10 pounds occasionally, less than 10 pounds frequently. Individual can
sit for about 6 hours in an 8 hour workday, can stand and walk for at least 2
hours during an 8 hour work day. Individual can occasionally climb, balance,
stoop, kneel, crouch and crawl. Individual is to avoid concentrated exposure to
fumes, dust, gases, odors, and poor ventilation. Individual can carry out,
understand, and remember simple routine and repetitive tasks. Individual can
have occasional contact with coworkers and general public.
Based on that
hypothetical, would there be jobs available? T. 63-64.

The Vocational Expert identified four sedentary, unskilled occupations that could be
performed with these restrictions: Cutter and Paster, press clippings (of which there are 300
jobs in Arkansas and 331,000 in the U.S.), Microfilm Document Repairer (of which there are
100 jobs in Arkansas and 2000 jobs in the U.S.), Trimmer (of which there are 200 jobs in
Arkansas and 15,000 in the U.S.) and Vehicle Escort Driver (of which there are 250 jobs in
Arkansas and 26,000 jobs in the U.S.). T. 64-65.
The ALJ proposed a third hypothetical question:
If I add to either of my hypotheticals that the individual could sit, stand, walk for
a combined total of less than 8 hours during an 8 hour work day, or would be
required to take frequent unscheduled breaks in excess of normal allotted breaks,
or would miss two or more days of work per month due to her impairments, or
would be off task up to one third of the day, how would each of those additional
factors individually affect the jobs that you identified as well as all other jobs? T.
65.
The Vocational Expert testified that those limitations would erode the job base to zero.
T. 65.
The ALJ’s RFC determination indicates that his decision was based upon the second of
his three hypothetical questions. The hypothetical question posed by the ALJ in this case
29

incorporated each of the impairments that the ALJ found to be credible, and excluded those
impairments that were discredited or that were not supported by the evidence presented (as
discussed supra). The Eighth Circuit has held that “an ALJ may omit alleged impairments from
a hypothetical question posed to a vocational expert when ‘[t]here is no medical evidence that
these conditions impose any restrictions on [the claimant’s] functional capabilities;” or “when
the record does not support the claimant’s contention that his impairments ‘significantly
restricted his ability to perform gainful employment.’” Owen v. Astrue, 551 F.3d 792, 801-802
(8th Cir. 2008)(quoting Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994). 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.

V.

Conclusion
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 day of September 15th, 2011.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE

30