Haasis v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on July 27, 2011. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LINDA KAYE HAASIS
Civil No. 10-2133
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration
Factual and Procedural Background
Plaintiff, Linda Kaye Haasis, 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 February 22, 2008, alleging a disability
onset date of June 15, 2001. T. 111. Allegations included diabetes, high blood pressure, hypothyroidism,
back issues and depression. T. 88. At the time of the onset date, Plaintiff was 43 years old and possessed
a ninth grade education. T. 44 - 45. She had past relevant work as a home health care aid. T. 60, 79.
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 July 8, 2009. T. 39-64.
Plaintiff was present at this hearing and represented by counsel. Vocational Expert Jim Spraggins also
testified. Administrative Law Judge (“ALJ”) Larry Shepherd issued a decision on January 22, 2010, finding
that Plaintiff was not disabled within the meaning of the Act. T. 81. On July 16, 2010, the Appeals Council
found no basis to reverse the ALJ’s decision. T.1. Therefore, the ALJ’s January 22, 2010, decision
became the Commissioner’s final administrative decision.
Plaintiff produced two pages of medical records from Cooper Clinic for the period of April 4,
2001, through July 23, 2004. T. 193-194. These records indicate she either visited the clinic or called on
three occasions (April 4, 2001; June 17, 2002; July 23, 2004) for adjustments or refills of medications.
During this time she was taking Atenolol (beta blocker to treat high blood pressure), Celexa (selective
serotonin reuptake inhibitor to treat depression), Levothroid (replacement hormone for thyroid deficiency),
Guanfacine (relaxes blood vessels to treat high blood pressure) and Terosin (alpha blocker to treat high
blood pressure). Id. During the April 4, 2001, visit, Plaintiff had blood drawn and a thyroid panel ordered.
T. 194. Her TSH (thyroid-stimulating hormone) level was 3.30 m/IU/ML and her T4 (thyroxine–thyroid
hormone) level was 0.93 NG/DL. Both results were within the reference ranges indicated for a normally
functioning thyroid. The lab report has a handwritten notation that the patient was to return in two weeks
for a followup, but there are no indications whether her doctor was satisfied with the results of the thyroid
testing. Plaintiff made no complaints and was not examined on any of these occasions. At the time of the
April 4, 2001, visit, Plaintiff weighted 236 pounds and her blood pressure was 182/108. Id.
Over the next four year period, up to the point at which she filed for disability, Plaintiff sought
prescription refills to treat depression, diabetes, high blood pressure and hypothyroidism. from Dr.
Roxanne Marshall once a year in 2004, 2005, and 2006 and twice in 2007. T. 239-247.
In 2008, Plaintiff was referred by the Agency for mental and physical consultative examinations.
On April 23, 2008, Dr. Stephanie Frisbie diagnosed Plaintiff with chronic low back pain1 , depression,
history of hypothyroidism and high blood pressure. T. 197-198. Upon physical examination, she noted
no physical limitations. T. 198.
On May 1, 2008, Dr. Terry Efird diagnosed Plaintiff with major depressive disorder, severe,
without psychotic features and generalized anxiety disorder and assessed a GAF score of 48-58, indicating
moderate to serious mental impairment. T. 215. Dr. Efird noted that Plaintiff communicated and interacted
in a socially adequate manner, had the capacity to perform basic cognitive tasks, possessed borderline to
low average intellectual functioning, performed most activities of daily life autonomously and had some mild
impairment in persistence and pace of performance. T. 214-216.
Subsequent to her application for benefits, Plaintiff saw Dr. Marshall once in 2008 and once in
2009. On June 3, 2008, Plaintiff first reported back pain and was diagnosed with a lumbrosacral strain.
T. 239. The February 2, 2009, visit was to get her prescriptions refilled and have her glucose and thyroid
levels checked. T. 279. Lab results showed that her blood sugar was high (302), her TSH was low and
her T4 was within normal range. T. 282.
In July of 2008 Plaintiff underwent her third consultative exam directed by the Agency. Dr.
Stephen Shry diagnosed plaintiff with major depression and assessed a GAF score of 50-61, indicating
moderate mental impairment. T. 253. He noted that she may be mildly impaired in her ability to cope with
the typical mental demands of basic work-like tasks, to attend to and sustain concentration on basic tasks,
and to complete basic work- like tasks within acceptable time frames. Id. He stated that he believed her
Plaintiff reported to Dr. Frisbie that she had had back pain for several years, but the first time she
complained or sought treatment for her back was two months after this CE. T. 195, 239.
performance may improve with adequate psychiatric intervention. Id.
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 March 30, 2005,
that she had not engaged in substantial gainful activity since June 15, 2001, and that she had severe
impairments of diabetes mellitus, morbid obesity, hypertension, and depression. T. 74. He also found that
she had non-severe impairments of back sprain and hypothyroidism. T. 75. 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. 76. 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 light, unskilled work. T. 80.
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 5th step of the sequential evaluation process. Pl.’s Br. at 6, 8, 11, 16.
Substantial Evidence Supports the ALJ’s RFC Finding
The ALJ found that the Plaintiff had the residual functional capacity to lift and carry twenty pounds
occasionally and ten pounds frequently. She can sit for about six hours during and eight hour work day and
can stand and walk for about six hours during an eight hour workday. She can understand, remember, and
carry out simple, routine, and repetitive tasks. She can respond appropriately to supervisors, co-workers,
and usual work situations. She can have occasional contact with the general public. She can perform low
stress work (defined as occasional decision-making and occasional changes in work place settings). T.
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).
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: diabetes mellitus, morbid obesity,
hypertension and depression. T. 74. 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 he in fact determined
that each diagnosis, separately and together, constituted impairments of some degree.
Plaintiff was apparently first diagnosed with type II diabetes on November 2, 2007, by Dr.
Marshall. T. 240. At that time she was prescribed Metformin and advised to check her blood sugar three
times a week with the hopes of keeping it under 140. Dr. Frisbee’s physical examination in 2008 resulted
in a finding of no limitations on Plaintiff’s physical abilities. T. 198. Plaintiff provided one lab report and
blood sugar logs from three weeks in February, 2009 that indicate frequent high levels of glucose. T. 280292. On February 2, 2009, Plaintiff told Dr. Marshall that she stopped taking Metformin because it gave
her diarrhea. T. 279. At that time Dr. Marshall noted no acute distress and placed no restrictions on
Plaintiff’s activities. Id. The ALJ made specific note of Plaintiff’s fluctuation in blood sugar and the fatigue
she attributed to diabetes, but there is simply no medical evidence that Plaintiff’s diabetes (or accompanying
fatigue) imposed any limitations on her ability to work. T. 74, 78.
The ALJ explained that Plaintiff is morbidly obese at 5'1" tall and 195 pounds. T. 74. He found
that while her obesity might exacerbate her back pain and diabetes it did not cause an ability ambulate
effectively. T. 76. Dr. Frisbee’s examination showed no respiratory or circulatory problems attributable
to her weight and detected full range of motion in her spine and all her joints. T. 196-197. There is no
medical evidence that Plaintiff’s obesity imposed any limitations on her ability to work. The Eighth Circuit
has found that when an ALJ references the claimant’s obesity during the claim evaluation process, such
review may be sufficient to avoid reversal. Heino v. Astrue, 579 F.3d 873, 881 (8th Cir. 2009); Brown
ex rel. Williams v. Barnhart, 388 F.3d 1150, 1153 (8th Cir. 2004).
Plaintiff has been treated for hypertension since 2001. Following a diagnosis of “uncontrolled
essential hypertension” on August 17, 2004, Dr. Marshall worked with Plaintiff successfully to get her
blood pressure under control. T. 243, 244. On February 5, 2007, Plaintiff reported to Dr. Marshall that
she had been “feeling well.” T. 241. On November 2, 2007, Plaintiff reported to Dr. Marshall that she
was “doing well.” T. 240. On February 2, 2009, Dr. Marshall noted that Plaintiff’s hypertension was
under good control. T. 279. The Eighth Circuit has held that an impairment that can be controlled by
treatment or medication is not considered disabling. See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). Plaintiff submitted no evidence that hypertension rendered her unable to work.
Plaintiff’s medical records indicated that she has been taking medication for depression since at
least 20022 . T. 193. Having no history of psychiatric treatment, Plaintiff underwent two mental
consultative examinations3 . Both Dr. Shry and Dr. Efird diagnosed Plaintiff with major depression and
assigned GAF scores of 48-58 and 50-61, respectively2 . T. 215, 253. A GAF of 41- to 50 indicates the
individual has “[s]erious symptoms ... or any serious impairment in social, occupational, or school
functioning....” DSM-IV at 32. A GAF of 51 to 60 indicates the individual has “[m]oderate symptoms ...
or moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32. The ALJ
considered both diagnoses as well as her testimony that she “do[esn’t] handle stress” and that she gets
nervous and cries when she is around people very long, her two complaints about her depression. T. 4950, 75 - 76. The result is that the ALJ limited Plaintiff’s RFC to occasional contact with the general public
Plaintiff told Dr. Efird on M ay 1, 2008 that she was first prescribed psychiatric medication “about five years
ago”, but Plaintiff’s medical records from Cooper Clinic indicate she was asking for refills of Celexa as far back as
June 17, 2002. T. 193, 213.
The court notes that Plaintiff accuses the Defendant of both “blatant doctor shopping” and failure to
properly develop the evidence, but the Court views the fact that Plaintiff was sent for two consultative examinations
to be evidence that the Administration and the ALJ went to great lengths to properly and adequately assess
The Global Assessment of Functioning (GAF) Scale is a numerical assessment between zero and 100 that
reflects a mental health examiner’s judgment of the individual’s social, occupational, and psychological function.
Kluesner v. Astrue, 607 F.3d 533, 535 (8th Cir. 2010). See DIAGNOST IC
DISORDERS IV-TR 34 (4th ed. 2000).
AND ST AT IST ICAL
M ANUAL OF M ENT AL
and only low stress work. T. 77.
Plaintiff contends that the ALJ failed to consider evidence which fairly detracted from his findings.
Pl.’s B. 8. She argues that the ALJ failed to consider her limitations brought about by fluctuations in blood
sugar, pain, fatigue, obesity, blood pressure, decreased grip strength and “loss of pulse” in foot, side effects
of medication, and anxiety. T. 8-10. As noted above, the ALJ did specifically consider many of these
reported conditions. In her April 23, 2008, consultative exam, Dr. Frisbie recorded that Plaintiff had a
40% reduction in grip strength but found there to be no limitation in her ability to lift, carry, handle or finger
objects. T. 197-198. Furthermore, Plaintiff never made any complaints about her ability to grip. In the
course of the same physical examination, Dr. Frisbie assessed Plaintiff’s circulatory system. She recorded
Plaintiff’s posterior tibia pulse3 as 1+ (barely palpable). She left the space next to dorsalis pedis3 blank,
most likely indicating she did not attempt to measure Plaintiff’s pulsation at this point. In 8 to 10 % of the
population, the dorsalis pedis pulse cannot be detected. Morland’s Illustrated Medical Dictionary 1493
(29th ed. 2000). Dr. Frisbie also did not record plaintiff’s height, weight, or blood pressure in the indicated
spaces; without notation from the doctor, one would not assume Plaintiff weighed 0 pounds or had no
blood pressure from the mere absence of a recorded measurement. Plaintiff’s argument that the ALJ did
not consider the fact that she had no pulse in her lower extremities is without merit. It cannot be argued
the ALJ did not properly consider favorable evidence or fail to explain his reasons for discounting that
evidence. Substantialevidence in the record as a whole supports the ALJ's decision. Finally, Plaintiff points
The pulse felt over the posterior tibial artery just posterior to the medial malleolus on the inner aspect of
the ankle. M orland’s Illustrated M edical Dictionary 1493 (29th ed. 2000).
The pulse felt on the dorsum of the foot between the first and second metatarsal bones. Id.
to no medical evidence that any of these conditions imposed any limitations on her ability to work.
The ALJ fully summarized all of plaintiff’s medical records and separately discussed each of
plaintiff’s alleged impairments. The Court finds that the ALJ properly considered the combined effects of
Plaintiff’s impairments. Martise v. Astrue, 641 F.3d 909. 924 (8th Cir. 2011); Hajek v. Shalala, 30
F.3d 89, 92 (8th Cir. 1994).
On June 3, 2008, Dr. Marshall provided the following statement:
Please be advised that I have seen Linda Haasis in my office for treatment of Type II
Diabetes, back pain, fatigue, thyroid problems, high blood pressure, and depression. Due
to the combination of these impairments, in my professional opinion, he (sic) is unable to
maintain an eight hour workday sitting, standing, and/or walking in combination. This
would exclude a sit down job as well as any job allowing alternating sitting with standing
or walking. Her concentration and attention would be significantly impaired by her pain
and depression as well.
The ALJ considered this statement from a treating source and determined that Dr. Marshall’s
opinion was not supported by her own treatment notes and granted it little weight. T. 79. Although Plaintiff
argues that Dr. Marshall’s opinion should be given “controlling weight” because she was a treating
physician, the ALJ’s analysis was consistent with the Commissioner’s regulations, which provide that a
treating physician’s opinion is given controlling weight if, and only if, it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence. 20 C.F.R. § 404.1527(d)(d); Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011). The
most important factors in evaluating medical reports are the status of the reporting physician and the quality
of the report. Bloch on Social Security. §5:7 (May 2011). But when the treating physician’s opinion
consists of nothing more than conclusory statements, the opinion is not entitled to greater weight than any
other physician’s opinion. Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991)(conclusory report that
Plaintiff was “totally disabled” containing few explanations and composed almost entirely of conclusions
not entitled to greater weight than the opinion of the other doctors in this case); Ward v. Heckler, 786 F.2d
844, 846 (8th Cir. 1986) Dr. Marshall provided no explanation as to how Plaintiff’s high blood pressure,
blood sugar levels, fatigue, thyroid problems, or back pain affected her abilities, other than to say that she
was unable to maintain an eight hour work day. Dr. Marshall’s opinion is of limited value due to its
vagueness and the fact that her own treatment history of Plaintiff indicates that plaintiff’s blood pressure was
under control and she was feeling well. It is permissible for an ALJ to discount an opinion of a treating
physician that is inconsistent with the physician’s clinical treatment notes. Halverson v. Astrue, 600 F.3d
922, 930 (8th Cir. 2010); Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Dr. Marshall’s
treatment notes indicate normal findings and no acute distress upon physical examination at Plaintiff’s
August 17, 2004, April 15, 2005, February 5, 2007 (Plaintiff also reported she was feeling well),
November 2, 2007 (Plaintiff was doing very well on her blood pressure medications, Plaintiff reported
doing well), June 3, 2008 and February 2, 2009 (Plaintiff’s hypertension was currently under good
control), visits. T. 239, 240, 241, 243, 244, 279. Dr. Marshall’s opinion is not only inconsistent with
the other medical evaluations on record, but internally inconsistent with her own treatment records. Thus,
Dr. Marshall’s opinion deserves no greater deference than any other physician's opinion in the record.
Finally, the ALJ is not required to adopt the opinion of a physician on the ultimate issue of a claimant’s
ability to engage in substantial gainful employment. Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1999).
Even if granted substantial weight, the evidence as a whole does not support Dr. Marshall’s opinion that
Plaintiff is unable to work.
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 records from Plaintiff’s treating physician 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 three consultative examinations. 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 functional capacity.
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.
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.
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
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).
Throughout his opinion and within his credibility assessment, the ALJ addressed several of the
Polaski factors and pointed out inconsistencies between Plaintiff's testimony and the record:
Plaintiff reported dressing and grooming herself, cooking meals, washing dishes, and sweeping
floors. T. 51. She testified there were no household chores she could not do and that she drives. T. 56,
57. She told Dr. Efird that she could perform her activities of daily living satisfactorily, although she
becomes tired. T. 213. Acts such as cooking, vacuuming, washing dishes, doing laundry, shopping,
driving, and walking are inconsistent with subjective complaints of disabling pain. Medhaug v. Astrue, 578
F.3d 805, 817 (8th Cir. 2009). “Acts which are inconsistent with a claimant’s assertion of disability reflect
negatively upon that claimant’s credibility.” Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001).
Plaintiff’s high blood pressure is under control and her anti depressants are helping. T. 48, 75, 279.
Her hypothyroidism is well-controlled with Synthroid. T. 75.
She was diagnosed with muscle strain in
June 2008 and prescribed a muscle relaxant. Subsequent to that she had no other treatment for her back
and has not been diagnosed with any back problem which would cause the limitations she reported. T. 78.
Failure to seek regular or sustained medical treatment is inconsistent with allegations of severe pain.
Nov otny v . Chater, 72 F.3d 669, 670 (8th Cir. 1995). The only side effect of her medications is
drowsiness. T. 48.
Many of plaintiff’s complaints are inconsistent with her residual functional capacity assessment. She
testified that her high blood pressure was exacerbated by stress and being around people, but Dr. Marshall
noted it was under control at her most recent visit and Plaintiff herself testified her medicine controls her
blood pressure. T. 53, 279. Plaintiff described being socially isolated, but she lives with her sister and her
two children, speaks on the telephone daily and has frequent visitors. T. 55, 146, 215. Dr. Frisbie’s
physical examination found no limitations in Plaintiff’s ability to walk, stand, sit, lift, carry, handle, finger,
see, hear, or speak. T. 198.
The Court finds that the ALJ adequately, if not expressly, applied the Polask i factors and
discounted Plaintiff’s subjective complaints of pain. See Schultz 479 F.3d at 983 (concluding that ALJ
properly considered the Polaski factors even though the ALJ did not cite to Polaski directly).
Accordingly, the ALJ did not err in discounting Plaintiff’s subjective complaints of pain. 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. He
based his determination largely on the testimony of the VE. T. 80. 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”.)
Jim Spraggins, a Vocational Expert, appeared and testified at the administrative hearing. T. 58 63. He identified Plaintiff’s prior relevant work as a home health care worker, which is classified as
medium, semi-skilled work. T. 60. The ALJ posed a hypothetical question asking Mr. Spraggins 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:
Please assume an individual born on April 10, 1958, with a limited education who could
carry twenty pounds occasionally and ten pounds frequently. The individual can sit for
about six hours in an eight hour work day and can stand/walk for six hours in an eight hour
work day, individual can understand, remember, and carry out simple routine or repetitive
tasks, individual can respond appropriately to supervision, coworkers, and usual work
settings, individual can have only occasional contact with general public.
Mr. Spraggins indicated that such a person would be able to perform light duty unskilled work.
T. 61. He identified three jobs which exist in significant numbers in Arkansas: poultry production line
worker, production line assembler, and sewing machine operator. T. 61.
The hypothetical question posed by the ALJ in this case incorporated each of the physical and
mental impairments that the ALJ found to be credible, as explained supra, 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.
The ALJ Properly Developed the Record.
Plaintiff argues that the ALJ should have re-contacted Dr. Marshall to clarify the discrepancies
between her June 3, 2008, note that Plaintiff was unable to work and her treatment records indicating
Plaintiff was generally well. Pl.’s Br. at 6. Plaintiff claims that there are unresolved discrepancies in Dr.
Frisbie’s consultative examination report and that the ALJ failed to develop crucial issues. Id. 7.
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 recontacting 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. 404.1519 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.
Plaintiff attempts to make an issue out of the fact that Dr. Frisbee’s April 23, 2008, consultative
physical exam report was electronically signed by Marie Pham, Advanced Practical Nurse, and stamped
with the signature of the doctor. Pl.’s Br. at 7. The innuendo that the report was created by a nurse and
“rubber stamped” by the doctor is poorly taken. The Plaintiff presented no evidence that Dr. Frisbie did
not perform the examination and write and/or review the report herself. Similarly Plaintiff calls into question
Dr. Frisbie’s finding of reduced grip strength and “absent pulses in the lower extremities,” insisting these
are discrepancies requiring further inquiry by the ALJ. Pl.’s Br. at 10. As noted earlier, the pulsation
record is not a discrepancy and even if it were, the Plaintiff has not presented any evidence that these
conditions prevent her from working. The ALJ was not required to re-contact Dr. Frisbie.
The ALJ found, as discussed above, that Dr. Marshall’s opinion was inconsistent with other
medical evidence as well as internally inconsistent. Neither the consulting physician’s report nor Plaintiff’s
own testimony adequately supported the treating physician’s disability determination. A lack of medical
evidence to support a doctor’s opinion does not equate to underdevelopment of the record as to a
claimant’s disability. Martise v. Astrue, 641 F.3d 909, 929 (8th Cir. 2011). In this case, the issue was
not whether the treating physician’s opinion was somehow incomplete, rather the ALJ found Dr. Marshall’s
opinion refuted by the record and her own earlier opinions and advice.
See Hacker v. Barnhart, 459
F.3d 934 (8th Cir. 2006). The ALJ does not have to seek additional clarifying statements from a treating
physician unless a crucial issue is undeveloped. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
The ALJ did not find that there were any undeveloped issues, only that there was no evidence to support
Dr. Marshall’s opinion. Once an ALJ concludes, based on sufficient evidence, that the treating doctor’s
opinion is “inherently contradictory or unreliable”, he is not generally required to seek more information
from that doctor. Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 200); Hacker v. Barnhar, 459 F.3d
934, 938 (8th Cir. 2006). The ALJ was not required to re-contact Dr. Marshall.
Having carefully reviewed the record, the undersigned finds that substantial evidence supports the
ALJ’s determination 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 27th day of July, 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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