-JRM Cooper v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on December 8, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LINDA L. COOPER

PLAINTIFF

v.

Civil No. 10-2149

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Linda Cooper, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying her claim for disabled widow’s insurance benefits (“DWB”) under Title II of the Social
Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial
review, the court must determine whether there is substantial evidence in the administrative record
to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
I.

Procedural Background:
The plaintiff filed her applications for DWB on July 30, 2007, alleging an amended onset

date of July 1, 20071 , due to back problems, osteoporosis, arthritis, a heart condition, high
cholesterol, high blood pressure, gastrointestinal issues, and depression. Tr. 98-105, 114-115, 140141, 146-151.

Her applications were initially denied and that denial was upheld upon

reconsideration. An administrative hearing was held on November 25, 2008. Tr. 17-46. Plaintiff
was present and represented by counsel.
At this time, plaintiff was 52 years of age and possessed an ninth grade education. Tr. 23,
62. She has no past relevant work (“PRW”) experience. Tr. 62, 124-131.

1

Plaintiff initially alleged disability beginning January 1, 2002. Tr. 20-21. However, at the hearing,
Plaintiff amended her onset date to July 30, 2007, because he husband did not die until June 2007. Tr. 20-21.

AO72A
(Rev. 8/82)

On April 2, 2009, the ALJ found that plaintiff’s degenerative disk disease of her lumbar
spine was severe, but did not meet or medically equal one of the listed impairments in Appendix
1, Subpart P, Regulation No. 4. Tr. 54-59. After partially discrediting plaintiff’s subjective
complaints, the ALJ determined that plaintiff retained the residual functional capacity (“RFC”) to
perform light work involving only frequent overhead reaching with her bilateral upper extremities,
frequent pushing/pulling with her bilateral upper and lower extremities, climbing, balancing,
kneeling, crouching, crawling, stooping, exposure to moving machinery and workplace hazards,
and driving; and requiring no transactional interaction with the public. Tr. 59-62. With the
assistance of a vocational expert, the ALJ found plaintiff could perform work as a production line
assembler, housekeeper, and plastics machine tender. Tr. 62-63.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on September 22, 2010. Tr. 1-4. Subsequently, plaintiff filed this action. ECF No. 1. This
case is before the undersigned by consent of the parties. Both parties have filed appeal briefs, and
the case is now ready for decision. ECF No. 8, 9.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the
Commissioner’s decision, the court may not reverse it simply because substantial evidence exists
in the record that would have supported a contrary outcome, or because the court would have
2

AO72A
(Rev. 8/82)

decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ
must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
To be eligible for DWB, Plaintiff must prove that she is the widow of the deceased worker,
has attained the age of 50, is unmarried (unless one of the exceptions of 20 C.F.R. § 404.335(e)
apply), and has a disability that began before the month before the month in which the Plaintiff
attains age 60, or if earlier, either seven years after the worker’s death or seven years after the
widow was last entitled to survivor’s benefits. Id. In this case, the end of the prescribed period,
is June 30, 2014.2
It is well-established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The
Act defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff
must show that his or her disability, not simply their impairment, has lasted for at least twelve
consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial

2

In this case, the wage earner died on June 23, 2007. Tr. 52.

3

AO72A
(Rev. 8/82)

gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the
final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III.

Evidence Presented:
Records indicate Plaintiff had a history of depression, post traumatic stress disorder

(“PTSD”), lumbago, shoulder pain, osteopenia, and gastrointestinal issues (nausea, diarrhea). Tr.
175-185, 188, 196-203, 206-220, 268-270. The evidence suggests that both her chest pain and her
gastrointestinal issues seemed to flare up with increased stress. Tr. 205, 215 A colonoscopy and
EGD in 2005 showed colitis and H. Pylori. Tr. 213. Further, in 2006, Plaintiff was treated for
atypical chest pain and possible mitral valve prolapse. Tr. 221-227, 313-314. Her condition
improved with the addition of Inderal. Although she did not achieve her target heart rate, a stress
test revealed no significant ST depression. There was also no evidence of cardiac dysrhythmia or
chest pain during the exam. Tr. 221. An echocardiogram also revealed a left ventricular ejection
rate of 70% with no evidence of significant valvular abnormalities. Tr. 226-227.
In 2007, Plaintiff was evaluated by cardiologist, Dr. Kamlesh Vluchandani. Tr. 191-194,
204-205. At this time, he noted that her stress test had been negative, she was normotensive with
a normal blood pressure, and she had a systolic murmur. Plaintiff was started on Propranolol SA
with marked improvement in her symptoms. Tr. 192.
4

AO72A
(Rev. 8/82)

A bone density study conducted in June 2007 revealed osteopenia with very low values and
a moderate risk for fracture. Tr. 229. Treatment was advised. Tr. 229.
On July 3, 2007, Plaintiff phoned the Veteran’s Administration (“VA”) Clinic due to
symptoms of depression following the death of her husband on June 23. Tr. 188, 311. She denied
suicidal ideations, but indicated that she was having a hard time dealing with the loss. At this time,
Plaintiff stated that she was taking Citalopram. Tr. 188.
On July 12, 2007, Plaintiff was treated by Dr. Aye Koko at the VA for depression. Tr.
186-187, 306-310. Treatment notes reveal that Plaintiff was better coping with her husband’s
death with an increase in her Celexa dosage. She felt less depressed and sad, had regained some
interest, and was sleeping better. Her mood swings and irritability had also improved. However,
finances and personal issues had not improved as she had hoped. Plaintiff also complained of left
hip and leg and right shoulder pain, as well as lower back pain. The pain was reportedly
aggravated by bending and lifting. Records indicate she could lift a maximum of 25 pounds. An
examination revealed a limited range of motion in her right shoulder and spine. Dr. Koko
diagnosed her with depression, lower back pain, and right shoulder pain. He directed her to
continue the Celexa and Darvocet and ordered x-rays of her lumbar spine and shoulder. Tr. 186187. The lumbar x-ray revealed degenerative changes involving the L4-L5 and L5-S1 facet joints
bilaterally, but no other abnormalities were noted. Tr. 228. X-rays of the shoulder were within
normal limits. Tr. 228.
On July 19, 2007, Plaintiff phoned the VA, reporting that she had experienced an anxiety
attack and diarrhea. Tr. 181. She was advised to take Immodium and offered a mental health
consultation, which she refused. Tr. 181.

5

AO72A
(Rev. 8/82)

On September 7, 2007, Plaintiff followed-up with Dr. Bulchandani. Tr. 301-305. The
week prior, she had experienced an episode of tachycardia, which she attributed to stress. She also
reported suffering from an anxiety attack and diarrhea when her vehicle was repossessed. Dr.
Bulchandani noted that, overall, her chest pains had improved on Propranolol. It was, however,
explained that the Propanolol could aggravate her depression, which was currently responding well
to medication. Plaintiff also reported diffuse muscle aches, but did not desire treatment for this.
Following a normal exam, Dr. Bulchandani increased her Zocor dosage to bring her LDL under
reasonable levels. Tr. 301-305.
On December 7, 2007, Plaintiff returned to the cardiologist. Tr. 274. She reported no
problems, aside from stress. Tr. 271-274. Her chest pain had resolved with Propranolol, and Dr.
Bulchandani noted she was better able to cope with stress. Tr. 271-274.
On January 17, 2008, Plaintiff presented in Dr. Koko’s office with reports of chronic
diffuse muscle pain, depression, and nightmares. Tr. 388-392. An examination revealed
tenderness in the shoulder, arm, gluts, and trochanteric bursa on the left side. Dr. Koko diagnosed
her with depression, possible PTSD, and muscle pain possibly related to Simvastatin. He
prescribed Celexa and recommended she stop Simvastatin. He indicated that he would check her
sedentary rate if the myalgia persisted. Dr. Koko also recommended a mental health consult. Tr.
390.
That afternoon, Plaintiff called for a mental health evaluation for depression. Tr. 386-387.
The examiner asked her questions to ascertain her risk for suicide and/or violence. Plaintiff denied
current or previous suicidal or homicidal ideations, intent, or attempts. Tr. 386.
On August 28, 2008, Plaintiff saw Dr. Robert Skinner, a gastroenterologist. Tr. 351-358.
She reported minimal gastrointestinal symptoms since March 2007. Tr. 355. Plaintiff did
6

AO72A
(Rev. 8/82)

complain of some diarrhea, which she attributed to the consumption of dairy products.
Accordingly, she avoided these products. Dr. Skinner recommended that she continue taking
Omeprazole and Mesalan1ine and take Lactase before meals. Tr. 357-358.
This same date, Plaintiff was also evaluated by Dr. Koko. Tr. 358-371. Plaintiff had been
compliant with her Citalopram with much improvement in her depression. She was helping to
raise her Grandson and was “keeping very active.” She reported that her back pain was doing okay
with Darvocet and the Mesalamine was helping her GI symptoms.

Tr. 364. Dr. Koko

recommended that she continue taking Fosamax, Vitamin D, and Calcium for osteopenia, as well
as Celexa for depression. However, Bactrim was also prescribed to treat a possible urinary tract
infection. Tr. 366-367.
On September 5, 2008, allergy testing revealed a low grade allergy to beef and soybeans.
Tr. 350-351. It was believed that beef products tended to trigger her diarrhea. Accordingly, a
soybean and beef restricted diet was recommended. Tr. 350-351.
On September 24, 2008, a bone density study revealed osteopenia with a moderate risk for
fracture. Tr. 333, 346.
On September 30, 2008, Plaintiff was treated in the emergency room for severe abdominal
pain that had awoken her from her sleep. Tr. 396-405. She was given pain medication and
Phenergan via IV. Tr. 396. No evidence of a bowel obstruction was noted on x-ray. Tr. 405.
Plaintiff was diagnosed with abdominal pain and constipation. The doctor gave her a prescription
for Norco and recommended Milk of Magnesia or Magnesium Citrate until the pain resolved. Tr.
398.
Upon returning home, Plaintiff phoned the VA with continued complaints of constant pain
under her right breast. Tr. 345. She indicated that she had been treated in the ER the previous day
7

AO72A
(Rev. 8/82)

for constipation. At this time, it hurt to cough and move. Plaintiff was advised to have her records
faxed to the VA to have an appointment scheduled. Tr. 345.
On May 6, 2008, Dr. Koko completed an assessment of Plaintiff's work-related limitations.
Tr. 406-408. He indicated that she could lift and carry 20 pounds occasionally and ten pounds
frequently; had no limits on standing/walking/sitting; was limited in pushing/pulling with both
upper and lower extremities due to chronic lower back pain and shoulder pain; and, should never
climb, balance, kneel, crouch, or crawl. Dr. Koko found her to be unlimited with regard to
reaching, handling, fingering, feeling, seeing, hearing, or speaking; and had no environmental
limitations. Tr. 406-408.
IV.

Discussion:
Plaintiff contends that the ALJ erred in finding her shoulder impairment, gastrointestinal

issues, and mental impairments to be severe; failing to properly evaluate the opinion of Dr. Koko,
Plaintiff’s treating physician; improperly determining her RFC; and, concluding Plaintiff could
perform jobs she could not actually perform. We will begin with an evaluation of the ALJ’s
credibility findings.
A.

Subjective Complaints:

When evaluating the credibility of plaintiff’s subjective complaints the ALJ is required to
make an express credibility determination detailing his reasons for discrediting the testimony.
Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
The standard of evaluation is not whether plaintiff experiences pain, but if the pain alleged
is intense enough to cause functional limitations. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir.
2001) (holding that the real issue is not whether the plaintiff is experiencing pain, but how severe
and whether it prevents her from performing any kind of work).
8

AO72A
(Rev. 8/82)

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, 1322 (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. Even so, the ALJ may discount a claimant’s
subjective complaints if there are inconsistencies between the alleged impairments and the
evidence as a whole. Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001); Hogan v. Apfel, 239
F.3d 958, 961 (8th Cir. 2001).
After reviewing the record, we believe that the ALJ adequately evaluated the factors set
forth in Polaski, and conclude there is substantial evidence supporting her determination that
plaintiff's complaints were not fully credible. The testimony presented at the hearing as well as
the medical evidence contained in the record are inconsistent with plaintiff’s allegations of
disability.
We note that Plaintiff has alleged a variety of disabling impairments, including back
problems, osteoporosis, arthritis, a heart condition, high cholesterol, high blood pressure,
gastrointestinal issues, depression, and PTSD. Records do indicate that Plaintiff suffered from
osteopenia, or a lower than normal bone mineral density. Her levels were not, however, low
9

AO72A
(Rev. 8/82)

enough for a diagnosis of osteoporosis, and medication was recommended to help strengthen her
bones. Tr. 229, 333. An x-ray of her lumbar spine revealed degenerative changes involving the
L4-L5 and L5-S1 facet joints bilaterally, but no other abnormalities were evident. Tr. 228.
Darvocet was prescribed to treat her pain, and Fosamax, Vitamin D, and Calcium were prescribed
to treat the osteopenia. Tr. 306-310, 366-367. Thus, it seems clear that Plaintiff’s condition
required only conservative treatment. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993)
(holding that treating physician’s conservative treatment was inconsistent with plaintiff’s
allegations of disabling pain). An examination in 2007 did show a limited range of motion in her
lumbar spine, but more recent exams have revealed no limitations. In August 2008, she even
reported to Dr. Koko that her pain was okay with the use of Darvocet.3 See Patrick v. Barnhart,
323 F.3d 592, 596 (8th Cir. 2003) (holding if an impairment can be controlled by treatment or
medication, it cannot be considered disabling). Additional evidence also reveals that Plaintiff
continued to be “very active,” in spite of her alleged pain and discomfort, calling into question her
contention of disability.
Plaintiff was also treated for muscle aches and pains on a couple of occasions. However,
her doctor believed this was related to taking Simvastatin. Tr. 388-392. Once this medication was
stopped, we can find no evidence of any further complaints of muscle aches and pains. See Forte
v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding that lack of objective medical evidence
is a factor an ALJ may consider). She did, however, report pain in her shoulder. Tr. 306-310. Xrays of the shoulder were within normal limits. Tr. 228. And, although Dr. Koko noted some
tenderness in her shoulder during an examination in January 2008, Plaintiff made no further

3

We note that Plaintiff testified at the hearing that the medication only dulled her pain a little bit. Tr.

32.

10

AO72A
(Rev. 8/82)

complaints of pain after July 2007.4 See Edwards v. Barnhart, 314 F.3d at 967 (holding that ALJ
may discount disability claimant’s subjective complaints of pain based on the claimant’s failure
to pursue regular medical treatment).
Plaintiff also suffered from gastrointestinal issues to include nausea and diarrhea. Again,
medication was successful in treating her condition. See Patrick, 323 F.3d at 596. And, while
severe stress does appear to cause occasional flare-ups (i.e., her husband’s death, repossession of
her vehicle, etc.), we do not find that the evidence reveals a severe impairment that interferes with
her ability to perform daily work-related activities. Records indicate that food allergies and a
sensitivity to dairy products also contributed to her symptoms. By September 2008, her symptoms
had improved with the use of medication and changes in her diet.5
In late September 2008, Plaintiff was treated for abdominal pain and constipation. Tr. 396405. She was advised to take Milk of Magnesia or Magnesium Citrate until the pain resolved.
Although Plaintiff phoned the VA with complaints of continued pain, there is no indication that
she scheduled an appointment as she was directed to do. And, she received no further treatment
for these complaints. Therefore, we can not say that this impairment was disabling.
Records indicate that Plaintiff was evaluated for possible mitral valve prolapse in 2006,
when she began experiencing chest pain. However, a cardiac stress test revealed no evidence of
cardiac dysrhythmia or chest pain during the exam. Tr. 221. An echocardiogram also revealed
a left ventricular ejection rate of 70% with no evidence of shunt or significant valvular
4

We do note Plaintiff’s testimony that she could not grip, frequently dropped things, experienced
chronic elbow pain, and would have to use her other hand to lower her arm if she raised it above her head. Tr.
30-31.
5

We note Plaintiff’s contention that she had experienced diarrhea causing her to not make it to the
restroom on at least three occasions the previous month. Tr. 33. However, a review of the medical records does
not indicate that Plaintiff reported this to her doctor. In fact, in September 2008, she denied any such symptoms.

11

AO72A
(Rev. 8/82)

abnormality. Tr. 226-227. See 20 C.F.R. Pt. 404, subpart. P, App. 1, § 4.04 (listings require a left
ventricular ejection fraction of thirty percent or less and a cardiologist’s conclusion that the
performance of an exercise test will present a significant risk to the individual). Further, no
evidence of mitral valve prolapse was noted. Plaintiff was prescribed high blood pressure
medications and her condition improved. Tr. 301-305. See id. In early 2007, Plaintiff was noted
to be normotensive, with a normal blood pressure. By September 2007, she reported no further
chest pain. Tr. 271-274.
The record also reveals that Plaintiff was prescribed medication to treat her high
cholesterol. Tr. 301-305. However, we can find no evidence to show that this condition was
severe, or that it interfered with her ability to perform work-related activities. See id.
Plaintiff was also diagnosed with depression, following the death of her husband. We note
that she was treated by her primary care physician, rather than a mental health professional. This
lack of formal treatment by a psychiatrist, psychologist, or other mental health professional is a
significant consideration when evaluating Plaintiff’s allegations of disability due to a mental
impairment. See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007). Plaintiff contends that she
did not obtain mental health treatment because she could not afford it. However, the record does
not support this contention. There is no evidence to indicate that Plaintiff was ever refused mental
health treatment due to her inability to pay or that she sought out low cost or indigent mental health
services. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir.1992) (rejecting claim of financial
hardship where there was no evidence that claimant attempted to obtain low cost medical treatment
or that claimant had been denied care because of her poverty); Hutsell v. Sullivan, 892 F.2d 747,
750 n. 2 (8th Cir.1989) (noting that “lack of means to pay for medical services does not ipso facto
preclude the Secretary from considering the failure to seek medical attention in credibility
12

AO72A
(Rev. 8/82)

determinations.”) (internal quotations omitted). Accordingly, we do not find her failure to obtain
treatment to be excused.
It is also significant to note that her depression responded well to medication. See Patrick,
323 F.3d at 596. By December 2007, her doctor noted that she was better able to cope with stress.
Tr. 271-274. In January 2008, Plaintiff underwent a telephone evaluation for depression. At that
time, she denied current or previous suicidal or homicidal ideations, suicide intent, and suicide
attempts. Tr. 386. Accordingly, we can not say the ALJ erred in concluding that her depression
was not severe.
There is also some evidence to indicate that Plaintiff was diagnosed with possible PTSD
on one occasion. Tr. 388-392. At this time, she also reported suffering from nightmares involving
deceased persons. At the hearing, Plaintiff testified that three of her children had passed away
soon after birth. Apparently, her husband and the children were in her dreams. We can not,
however, find any evidence to indicate that Plaintiff sought out consistent treatment for
nightmares/PTSD or that she voiced frequent complaints of her symptoms. See Hutton v. Apfel,
175 F.3d 651, 655 (8th Cir. 1999) (failure of claimant to maintain a consistent treatment pattern
for alleged mental impairments is inconsistent with the disabling nature of such impairments).
Accordingly, we can not say that her condition was as severe as alleged.
Although Plaintiff testified that her medications made her drowsy, we can find no objective
evidence to support this contention. Plaintiff reported no significant medication side effects to her
doctors. See Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir. 2004) (alleged side effects were
properly discounted when plaintiff did not complain to doctors that her medication made
concentration difficult). Had her medications made her drowsy enough to interfere with her ability
to perform daily activities, we believe she would have discussed this matter with her doctor.
13

AO72A
(Rev. 8/82)

Accordingly, we can not say the ALJ erred in discrediting her testimony in this regard.
Plaintiff’s reported activities also undermine her claim for disability. On an adult function report,
she reported the ability to care for her six year old grandson, care for her animals (at least seven
cats and a dog), care for her personal hygiene (with some reported pain and discomfort), prepare
meals, wash clothing, clean the house, mow using a riding mower, go outside daily, drive a car,
go out alone, shop in stores for food, pay bills, count change, handle a savings account, use a
checkbook/money orders, read, watch television, watch her grandson play sports, and talk on the
phone. Tr. 132-136. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (ability to care for one
child, occasionally drive, and sometimes go to the store); Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996) (ability to visit neighbors, cook, do laundry, and attend church); Novotny v. Chater,
72 F.3d at 671 (ability to carry out garbage, carry grocery bags, and drive); Johnston v. Shalala,
42 F.3d 448, 451 (8th Cir. 1994) (claimant’s ability to read, watch television, and drive indicated
his pain did not interfere with his ability to concentrate); Woolf v. Shalala, 3 F.3d 1210, 1213-1214
(8th Cir. 1993) (ability to live alone, drive, grocery shop, and perform housework with some help
from a neighbor). In March 2007, Plaintiff reported that she had been playing ball when she slid
on gravel, injuring her right hand, left knee, and right elbow. Tr. 211. Plaintiff also reported that
her Grandson spent a great deal of time in her care, as she was essentially raising him. Tr. 33-34.
Further, in August 2008, she stated that she was keeping “very active.” Tr. 358-371. We find
these statements to be inconsistent with her complaints of disabling pain. Clearly, these activities
do not support plaintiff’s claim of disability.
Therefore, although it is clear that plaintiff suffers from some degree of impairment, she
has not established that she is unable to engage in any and all gainful activity. See Craig v. Apfel,
212 F.3d 433, 436 (8th Cir. 2000) (holding that mere fact that working may cause pain or
14

AO72A
(Rev. 8/82)

discomfort does not mandate a finding of disability); Woolf v. Shalala, 3 F.3d at 1213 (holding
that, although plaintiff did have degenerative disease of the lumbar spine, the evidence did not
support a finding of disabled). Neither the medical evidence nor the reports concerning her daily
activities support plaintiff’s contention of total disability. Accordingly, we conclude that
substantial evidence supports the ALJ’s conclusion that plaintiff’s subjective complaints were not
totally credible.
The evidence also indicates that Plaintiff had only minimal earnings between 1991 and
1994. In 1994, she stopped working to care for her ill husband. This raises a question as to
whether or not her unemployment was actually due to medical impairments. Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (stating lack of work history may indicate lack
of motivation to work, rather than lack of ability).
B.

Non-Severe Impairments:

Plaintiff contends that the ALJ erred in concluding that her shoulder impairment,
gastrointestinal issues, and mental impairments were not severe. An impairment is not severe if
it amounts only to a slight abnormality that would not significantly limit the claimant’s physical
or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct.
2287, 96 L.Ed.2d 119 (1987); id. at 158, 107 S.Ct. 2287 (O'Connor, J., concurring); 20 C.F.R. §
404.1521(a). If the impairment would have no more than a minimal effect on the claimant’s ability
to work, then it does not satisfy the requirement of step two. Page v. Astrue, 484 F.3d 1040, 1043
(8th Cir.2007). Thus, alleged impairments may not be considered severe when they are stabilized
by treatment or are otherwise unsupported by the medical record. Johnston v. Apfel, 210 F.3d 870,
875 (8th Cir.2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000) (plaintiff bears
the burden to establish severe impairments at step-two of the sequential evaluation).
15

AO72A
(Rev. 8/82)

As previously noted, the record does not support the existence of a medically determinable
shoulder impairment. While Plaintiff did complain of pain on a few occasions, her treatment for
alleged pain was inconsistent, at best. Aside from tenderness on one occasion, objective tests and
physical exams revealed no significant abnormalities. As such, we do not find error in the ALJ’s
determination that this impairment was non-severe.
Likewise, we find no fault with the ALJ’s conclusion that Plaintiff’s gastrointestinal issues
were non-severe. While the evidence does suggest that these problems were somewhat situational
in nature, i.e., in response to stress and the death of her husband and the presence of beef, soy, and
dairy products in her diet, this condition responded well to medication. Johnston, 210 F.3d at 875.
Plaintiff contends that her condition would at times necessitate unscheduled and frequent bathroom
breaks. However, we can find no evidence in the record to support this contention.6 Accordingly,
we find substantial evidence supports the ALJ conclusion that this impairment was non-severe.
Plaintiff’s mental impairment was also properly found to be non-severe. Here again, the
depression was related to the death of her husband and the severe stress that followed his death.
It responded well to medication, so much so that her doctor commented that her ability to handle
stress was even improving. Plaintiff did not seek out mental health treatment, and reported no
suicidal ideation, intent, or plans. She denied having any problems getting along with authority
figures, reported that she was helping to raise her grandson, and indicated that she continued to live
a “very active” life. Tr. 137-138, 358-371. We find these abilities to be inconsistent with her

6

Counsel’s contention that Plaintiff recently reported to Dr. Skinner that she continued to have up to
three diarrhea episodes per week is misplaced. A review of the record reveals Plaintiff made that report in 2005.
And, her condition then improved via medication. Tr. 214-215.

16

AO72A
(Rev. 8/82)

allegations of severe and disabling depression. Accordingly, the ALJ’s non-severe determination
is supported by substantial evidence.
C.

RFC Assessment:

We next turn to the ALJ’s determination that plaintiff had the RFC to perform light work
involving only frequent overhead reaching with her bilateral upper extremities, frequent
pushing/pulling with her bilateral upper and lower extremities, climbing, balancing, kneeling,
crouching, crawling, stooping, exposure to moving machinery and workplace hazards, and driving;
and requiring no transactional interaction with the public. RFC is the most a person can do despite
that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using all relevant evidence in
the record. Id. This includes medical records, observations of treating physicians and others, and
the claimant’s own descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting
from symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3).
The United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by medical
evidence that addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003).
In the present case, the ALJ carefully reviewed the medical records, plaintiff’s subjective
complaints, plaintiff’s testimony regarding her daily activities, and the functional limitations set
forth by the physicians. On August 17, 2007, Dr. Ronald Crow completed a physical RFC
assessment. Tr. 239-246. After reviewing Plaintiff’s medical records, he concluded Plaintiff could

17

AO72A
(Rev. 8/82)

perform a full range of light work. Tr. 239-246. This assessment was affirmed by Dr. Jerry Mann
on December 17, 2007. Tr. 328.
On August 25, 2007, Dr. Paula Lynch completed a psychiatric review technique form. Tr.
249-262. She also reviewed Plaintiff’s medical records and diagnosed Plaintiff with depressive
disorder not otherwise specified, bereavement. Dr. Lynch was of the opinion that Plaintiff would
have only mild limitations in all areas of functioning and noted no episodes of decompensation.
Tr .249-262. This assessment was affirmed by Dr. Jerry Henderson on December 17, 2007. Tr.
329.
We also note Dr. Koko’s assessment dated May 6, 2008. Tr. 406-408. However, after
reviewing the record in this case, we agree with the ALJ’s conclusion that Dr. Koko’s opinion is
not consistent with the evidence. Dr. Koko concluded Plaintiff should never climb, balance, kneel,
crouch, and crawl, due to her back and shoulder pain. However, in March 2007, she was
reportedly playing ball. Plaintiff also indicated that she was raising her young grandson, perform
various chores around the house, watching her grandson play sports, and leading a “very active”
lifestyle. We find these activities to be inconsistent with a finding that she could never perform
the aforementioned activities. Accordingly, the ALJ’s decision not to give Dr. Koko’s opinion
controlling weight is supported by substantial evidence.
Plaintiff also takes issue with the ALJ’s conclusion that she could frequently reach
overhead with both upper extremities and push/pull with upper and lower extremities bilaterally.
She contends that this is inconsistent with Dr. Koko’s opinion that she was “limited” in these areas.
We do note Dr. Koko’s finding in this regard. However, he provided no definition of the term
limited, so it is difficult to discern the amount of restriction allegedly arising from this impairment.
We also note Plaintiff’s level of activity and the fact that she sought out inconsistent treatment for
18

AO72A
(Rev. 8/82)

her alleged shoulder pain. A limited range of motion was noted in the shoulder in 2007 with no
other abnormalities noted until 2008, when her shoulder was noted to be tender on one occasion.
Accordingly, while we do believe she had some mild limitations with regard to the shoulder, we
find that substantial evidence supports a finding that she could frequently (2/3 of the day) reach
overhead and push/pull.
Plaintiff also contends that the ALJ’s assigned RFC does not account for her non-exertional
impairments. Specifically, she alleges that he should have obtained a consultative mental
evaluation to determine her mental limitations. C.f., Barrett v. Shalala, 38 F.3d 1019, 1023 (8th
Cir. 1994) (holding ALJ is required to order medical examinations and tests only if the medical
records presented to him do not give sufficient medical evidence to determine whether the claimant
is disabled); 20 C.F.R. §§ 404.1519a(b) and 416.919a(b) (2006). Plaintiff did carry a diagnosis
of depression. The medical evidence reveals that she had no history of mental health treatment,
inpatient or outpatient, opting to receive only medication from her general doctor. And, her
depression responded well to the medication, showing notable improvement. In fact, Plaintiff even
denied a history of suicidal ideations and/or attempts, reported no problems getting along with
authority figures, and denied ever having been fired due to problems getting along with others.
While she did complain of some panic attacks around the time of the hearing, this is not
documented in the medical and no treatment for any such symptoms was ever administered.
Accordingly, while we do believe her mental limitations limited her ability to perform work
involving transactional interaction with the public, we do not believe that it resulted in any greater
limitations or prevented her from performing the range of work identified by the ALJ. And, we
do not find that the ALJ’s failure to order a consultative evaluation constituted reversible error.
The record contained substantial evidence in support of the ALJ’s assessment.
19

AO72A
(Rev. 8/82)

D.

Jobs Available:

We also find that substantial evidence supports the ALJ’s finding that plaintiff can perform
work that exists in significant numbers in the national economy. The vocational expert testified
that a person with Plaintiff’s RFC could perform work as a production line assembler,
housekeeper, and plastics machine tender. Tr. 40-42. See Long v. Chater, 108 F.3d 185, 188 (8th
Cir. 1997); Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996).
Plaintiff contends that the ALJ’s conclusion that she could return to work that exists in the
national economy is misplaced because she failed to include all of her limitations in the
hypothetical posed to the vocational expert. We note, however, that the ALJ is only required to
include those limitations in his hypothetical which she finds to be credible. See Vandenboom v.
Barnhart, 421 F.3d 745, 750 (8th Cir. 2005). 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,
and excluded those impairments that were discredited or that were not supported by the evidence
presented. Accordingly, we find no error.
V.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ's decision denying the plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 8th day of December 2011.
/s/J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

20

AO72A
(Rev. 8/82)