-JRM Hibbard v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 17, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
VALARIE A. HIBBARD
Civil No. 10-2175
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Valarie Hibbard, 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 disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and
XVI 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).
The plaintiff filed her applications for DIB and SSI on October 14, 2008, alleging an onset date
of April 6, 2007, due to depression, arthritis, shortness of breath due to chronic obstructive pulmonary
disease (“COPD”), and heart problems. Tr. 143-150, 182, 237-238. Her applications were initially
denied and that denial was upheld upon reconsideration. Tr. 68-77, 81-88. Plaintiff then made a request
for a hearing by an Administrative Law Judge (ALJ). An administrative hearing was held on October
5, 2009. Tr. 31-67. Plaintiff was present and represented by counsel.
At this time, plaintiff was 45 years of age and possessed a high school diploma. Tr. 36. She had
past relevant work (“PRW”) experience as quality assurance inspector, cake decorator, and deli worker.
Tr. 36, 53-54, 56, 60, 183, 188, 207.
On April 2, 2010, the ALJ found that plaintiff’s COPD, obesity, arthritis, and depression were
severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P,
Regulation No. 4. Tr. 13-15. After partially discrediting plaintiff’s subjective complaints, the ALJ
determined that plaintiff retained the residual functional capacity to perform unskilled light work
involving limited interaction with others; occasional climbing, balancing, stooping, kneeling, crouching,
and crawling; and, no concentrated exposure to temperature, humidity, and airborne irritants. Tr. 15-17.
With the assistance of a vocational expert, the ALJ found plaintiff could perform work as a sorter, hand
packager/inspector, and inspector. Tr. 18-19.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on October 15, 2010. Tr. 1-3. 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 Nos. 8, 9.
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 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).
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 gainful activity
since filing his/her 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/her 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/her residual functional
capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520,
Records dated prior to the alleged onset date reveal a history of treatment for hypertension,
gastric reflux, chest pain, sinubronchitis, polyarthralgia, borderline cardiomegaly, global paresthesia
likely due to anxiety, situational depression, and anxiety. Tr. 239-264, 341, 348, 393-400. A nuclear
stress scan conducted in September 2006 was normal and revealed an ejection fraction rate of 56%1. Tr.
The 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. 20 C.F.R. Pt.
404, subpart. P, App. 1, § 4.04. It is clear Plaintiff does not meet these requirements, given her ejection fraction
rate and the fact that she has undergone exercise stress tests.
On August 7, 2007, Plaintiff was hospitalized for two days due to chest pain. Tr. 343-347, 349384. Plaintiff stated that the chest pain began while she was working. She described it as left-sided,
starting in the clavicle and going to the central area of her chest. The pain was sharp, and she rated it as
a 10 on a 10-point scale. It increased with movement, responded to Nitroglycerin, and was associated
with nausea and diaphoresis. Overall, Plaintiff took three Nitroglycerin for three episodes of chest pain.
She also developed severe shortness of breath, which was severe, and rendered her unable to talk or
move. As a result, her family transported her to the ER. Upon admission, Plaintiff also reported some
joint pain without muscle weakness or neurological deficits, hematological symptoms, or endocrine
compromise. A physical examination was non-contributory; her laboratory findings were normal; chest
x-rays showed over penetration, but no consolidations, infiltrations, or pleural effusion; and, an EKG
showed sinus rhythm with a normal axis and no changes in her previous EKGs. Plaintiff was admitted
to ICU to rule out the possibility of a myocardial infarction. The following day, Plaintiff underwent a
stress test and myocardial perfusion imaging (“MPI”), both of which were normal and revealed an
ejection fraction rate of 69%. She was discharged home with prescriptions for a beta-blocker and aspirin.
The Imdur was discontinued, but all other home medications were continued. Plaintiff was to follow-up
with her primary care physician and cardiology in one week. Her discharge diagnoses were resolved
chest pain, osteoarthritis, hypertension, COPD, and depression. Dr. Matthew Steed released her to return
to activity as tolerated, and directed her to increase her walking to thirty minutes per day. Tr. 343-347.
On September 20, 2007, Plaintiff complained that her lungs were “killing” her. Tr. 392. She was
fatigued, dizzy, complained of chest pain, and exhibited a dry cough. The doctor also noted a flat affect
with bilateral shallow breaths due to splinting. The doctor diagnosed her with noncardiac chest pain and
COPD. He prescribed Cipro, administered a Decadron injection, and changed her from Albuterol to
Combivent. Tr. 392.
On November 14, 2007, Plaintiff sought emergency treatment for symptoms related to a COPD
flare and chest pain of uncertain causes. Tr. 265-278, 340, 385-388. She presented with complaints
regarding her lungs and her knees. Faint wheezing; a moderate, productive cough with yellow sputum;
and, slightly decreased air movement were noted on examination. Plaintiff was prescribed Prednisone,
Celebrex, and Azithromycin to treat her COPD exacerbation. She was also advised to continue using the
Albuterol metered dose inhaler. Tr. 265-278.
On November 27, 2007, Plaintiff complained of coronary spasms, hypertension, a dry cough,
orthopnea, snoring, epigastric pain, and diarrhea. Tr. 420-422. An examination revealed oral thrush.
Dr. Arturo Meade, a pulmonologist, diagnosed her with COPD and oral thrush. Smoking cessation and
Chantrix were prescribed, as well as Diflucan. Tr. 420-422.
On April 2, 2008, Plaintiff presented in the ER with complaints of numerous episodes of chest
pain. Tr. 280-318, 470-476. Her most recent experience occurred approximately four hours prior, after
going for a walk. She experienced chest pain that radiated down her left arm and into her jaw, along with
nausea and diaphoresis. The pain was relieved via two sublingual Nitroglycerine. Plaintiff denied
shortness of breath and dyspnea. An examination revealed a regular rate and rhythm with no appreciable
murmur, rubs or gallops. Her mood and affect were both normal, and her remote and short-term memory
were intact. Laboratory testing also revealed a blood count within normal limits and a negative triage
panel. Because she had several risk factors for coronary artery disease, Plaintiff was admitted for
observation on telemetry to rule out acute myocardial infarction. Repeat EKG’s revealed sinus
bradycardia, but were otherwise normal. A nuclear stress test was attempted, but Plaintiff reported
fatigue and chest pain at stage II. However, it is noted that the test results were normal for the work level.
Myocardial perfusion imaging showed no EKG changes to suggest ischemia with exercise stress testing
at a suboptimal target heart rate, normal perfusion at suboptimal heart rate, a normal gated SPECT study,
and an ejection fraction rate of 57%. Chest x-rays were also unremarkable, showing no acute
cardiopulmonary disease. Standard medical therapy and Statin therapy were instituted. Plaintiff was
diagnosed with COPD, obesity, and chest pain. Smoking cessation was strongly advised, as were weight
loss and exercise. Tr. 280-318.
On April 10, 2008, Plaintiff indicated that she had recently been in the hospital due to chest pain
and was placed on Xanax. The doctor at Cornerstone Clinic noted that she was anxious, depressed, and
complained of insomnia.
An examination revealed tender bilateral costochondral joints, tender
subspinale and intraspinal muscles, and muscle spasms. However, range of motion was noted to be
within normal limits. Plaintiff was diagnosed with chronic, non-cardiac chest pain and acute left shoulder
pain. She was prescribed Klonopin, range of motion exercises, and a trial of Trazadone.
On April 15, 2008, Plaintiff continued to experience difficulties with her COPD. Tr. 418-419.
She complained of chest tightening, cough, and cold dry sweats. Plaintiff also stated that she was unable
to stop smoking three packages of cigarettes per day. Dr. Meade diagnosed Plaintiff with a restrictive
impairment secondary to obesity and COPD. She was directed to stop smoking. Tr. 418-419. Chest xrays were normal. Tr. 426. Further, pulmonary function tests revealed a moderate restrictive ventilatory
defect, normal diffusion capacity, and no significant change post-bronchodilator therapy. Tr. 427-430.
On May 10, 2008, Plaintiff was again treated for a COPD flare. Tr. 319-339, 459-468. She
reported difficulty breathing, a non-productive cough, and a low grade fever. Some bilateral diminished
breath sounds and wheezing were noted. Her primary care physician had called in prescriptions for
Dexamethasone and Bactrim DS. Following the administration of SoluMedrol and two updraft
treatments, Plaintiff was released home with a prescription for an Atrovent inhaler. Tr. 319-339.
On September 4, 2008, Plaintiff presented at the Cornerstone Clinic to have paperwork
completed by the doctor. Tr. 390. Plaintiff was diagnosed with hypertension and COPD. She was given
prescriptions for Effexor XR, Nexium, and Cozaar. Tr. 390.
On October 10, 2008, Plaintiff complained of symptoms related to her arthritis. Tr. 389. The
doctor at Cornerstone Clinic diagnosed her with chronic polyarthralgia without joint effusion and no
signs of synovitis. The doctor advised her to resume Lortab. He noted that she had low motivation to
quit smoking, exercise, or lose weight. She was also directed not to take more than two Celebrex daily,
to apply heat to the affect areas, and to perform stretching exercises. Tr. 389.
On November 4, 2008, Plaintiff complained of lung restrictions related to her COPD. Tr 415417. Specifically, she reported difficulties with congestion, shortness of breath, wheezing, a sore throat,
and green thick sputum. Expiratory wheezing was noted on examination. The doctor also noted that she
was continuing to smoke three packages of cigarettes per day. He diagnosed Plaintiff with COPD
exacerbation, and bronchitis. Azithromycin was prescribed, and Plaintiff was directed to stop smoking.
On December 18, 2008, Plaintiff sought treatment for a sinus infection. Tr. 402, 480. She was
diagnosed with acute sinusitis, COPD, hypertension, anxiety, and depression. The doctor prescribed
Mucinex D and Cipro. He also administered a Decadron injection. Tr. 402.
On January 12, 2009, Plaintiff followed-up concerning her depression and anxiety. Tr. 401, 479.
She indicated that her symptoms had worsened, as she had experienced many family deaths. Plaintiff
also stated that her arthralgia had worsened since stopping Celebrex. She was diagnosed with depression
with anxiety and chronic polyarthralgia. The doctor prescribed Lortab, Zoloft, Imdur, and one other
medication that is illegible. Tr. 401.
On January 23, 2009, Andre Cole, a licensed counselor at Perspectives Behavioral Health
Management conducted a diagnostic evaluation of Plaintiff. Tr. 504-522. She complained of depression
and reported that her son had been stationed in Iraq. Plaintiff also reported being a slow learner and
having irritable moods, decreased appetite, sleep disturbance, low energy, poor concentration and feelings
of hopelessness. Anxiety and depression symptoms were endorsed, as were learning, cognition, and
memory impairments. Plaintiff was diagnosed with major depressive disorder. She was then referred
for individual psychotherapy on an outpatient basis. Tr. 504-522.
In March 2009, Plaintiff was now reportedly taking Cymbalta and Klonopin. Tr. 478. She also
indicated that her son was in Iraq, and she was stressed. The doctor noted that she was mildly anxious
with slight tenderness in her left carotid artery. The doctor diagnosed her with chronic left carotidynia
and major depressive disorder. A carotid doppler was ordered. Tr. 478.
On March 23, 2009, Plaintiff underwent an initial evaluation with Dr. Brent Witherington at
Perspectives Behavioral Health Management. Tr. 499-503. He noted Plaintiff’s reported diagnoses and
her complaints of symptoms associated with major depressive disorder and anxiety. Plaintiff complained
of symptoms of worthlessness and hopelessness, sleeping difficulties, anhedonia, difficulty concentrating,
low energy, and a diminished appetite. At this time, Plaintiff denied a cough, hemoptysis, or severe
shortness of breath, muscle tenderness or pain, paresthesias, and heat intolerance. Dr. Witherington noted
no inappropriate behaviors, a normal flow of speech, no hallucinations or delusions, no apathy, no
obsessions or compulsions, no suicidal thoughts or plans, full orientation, adequate memory and insight,
and adequate judgment. Dr. Witherington prescribed Cymbalta to help with her depression and anxiety
symptoms, and to possibly increase her energy level and decrease her alleged chronic pain. Although
Plaintiff requested an increased dosage of Klonopin, the doctor denied her request. He found no
indications for Klonopin, and indicated that once Cymbalta was titrated, he would begin tapering her off
of the Klonopin. Dr. Witherington also encouraged intense therapy, recommended daily exercise and
diet, and strongly recommended smoking cessation. He indicted that Plaintiff’s global assessment of
functioning score was 51. Tr. 499-503.
On March 26, 2009, a carotid duplex study was normal. Tr. 485. It revealed a normal real time
ultrasound study of the carotid arteries of the neck, a normal doppler of the carotid arteries of the neck,
and a normal doppler study of the vertebral arteries. Tr. 485.
On May 6, 2009, Plaintiff was again treated by Dr. Meade for COPD related symptoms. Tr. 454456. Plaintiff continued to smoke one and a half packages of cigarettes per day, cough, and wheeze. A
chest x-ray revealed stable cardiomegaly. Pericardial effusion or cardiomyopathy could not be excluded,
and an echocardiogram was recommended for correlation. Dr. Meade diagnosed her with COPD and
osteoarthritis. He prescribed Symbicort. Tr. 454-456.
On June 19, 2009, Plaintiff indicated that her depression was a little better. Tr. 487. Plaintiff
reported getting more rest, and stated that her moods were a little better. However, she continued to have
no desire to be around others or to be involved in activities. Plaintiff reported some increased anxiety,
and continued low energy. Dr. Witherington noted her condition to be improved and assessed her with
a GAF of 40. He then advised her to continue the Cymbalta, Abilify, and Klonopin, and encouraged her
to continue therapy, perform daily exercises, and to stop smoking. Tr. 487.
In July 2009, Plaintiff returned to the Cornerstone Clinic for medication refills. Tr. 477. Plaintiff
complained of back and neck pain, increased weight due to Abilify, edema in her hands and feet, and
atypical chest pain. A flat affect and trace edema were noted on examination. The doctor diagnosed her
with morbid obesity, chronic pain, COPD, hypertension, and major depressive disorder. Plaintiff was
prescribed Lortab, Dyazide, and Phenergan. Tr. 477.
On July 15, 2009, Dr. Witherington composed a revised treatment plan for Plaintiff. Tr. 488-498.
He diagnosed her with major depressive disorder and assessed her with a global assessment of
functioning (“GAF”) score of 35. He listed hobbies, habits, socialization skills, physical activity level,
physical functioning, ability to develop friendships, and compliance with treatment as her weaknesses.
Dr. Witherington also noted that she had been discharged from day treatment due to her not wanting to
attend because she said she did not feel comfortable around other people. Her discharge statement
indicated she had made minimal progress on knowledge, skills, and symptoms. At that time, Plaintiff
had shown moderate improvements in the area of risk based behaviors and reported a significant decrease
in suicidal thoughts. Currently, Plaintiff complained of suicidal ideations, so it was noted that crisis
services would be notified if Plaintiff’s symptoms escalated and she refused to contract for safety. Tr.
On July 31, 2009, Plaintiff presented for a medication management appointment with Dr.
Witherington. Tr. 486. She indicated that she was doing about the same as she had been six weeks prior.
Plaintiff denied any worsening of symptoms, stating that her son had returned home from Iraq. She also
denied medication side effects, sleep difficulties, appetite changes, hallucinations, or suicidal thoughts.
Plaintiff was not exercising as directed, but was participating in therapy, having last seen her therapist
two weeks prior. She indicated that the worst part of her condition was knowing that her son would be
going to Afghanistan in 2011. Dr. Witherington assessed Plaintiff’s condition as stable and gave her a
GAF score of 40. He then directed her to continue the Cymbalta, Abilify, and Klonopin, and encouraged
her to continue therapy, perform daily exercises, be active in the community, and stop smoking. Tr. 486.
On August 19, 2009, Robin Sanders, a counselor, completed a mental medical source statement.
Tr. 449-453. She indicated that Plaintiff had severe limitations regarding her ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms, perform at a
consistent pace without an unreasonable number and length of rest periods, and interact appropriately
with the general public; marked limitations in the areas of maintaining attention and concentration for
extended periods; performing activities within a schedule, maintaining regular attendance, being punctual,
and accepting instructions, responding appropriately to criticism from supervisors, traveling in unfamiliar
places, using public transportation, and setting realistic goals or making plans independently of others;
and, moderate limitations in carrying out detailed instructions, making simple work related decisions,
asking simple questions or requesting assistance, getting along with coworkers or peers without
distracting them or exhibiting behavioral extremes, and responding appropriately to changes in work
setting. Ms. Sanders opined that Plaintiff was psychologically unable to perform normal work-related
tasks on a day-to-day basis in order to hold a job. Tr. 449-453.
Plaintiff contends that the ALJ erred by failing to give the proper weight to the medical evidence;
concluding Plaintiff could perform a range of light work; and, concluding Plaintiff could perform work
as a sorter, hand packager/inspector, and inspector. We will begin our analysis with an evaluation of
Plaintiff subjective complaints and the medical evidence of record.
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 him from performing any kind of work).
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).
At the onset, we note that Plaintiff alleged disability due to heart problems, shortness of breath
due to chronic obstructive pulmonary disease (“COPD”), obesity, and arthritis. The ALJ concluded
Plaintiff’s cardiomegaly was non-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); 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.
In September 2006, a discharge summary revealed that Plaintiff’s EKG had shown only
borderline cardiomegaly with no evidence of congestive heart failure. Both a stress test and an
echocardiogram were negative. In August 2007, Plaintiff was again admitted after suffering chest pain,
but her cardiac enzymes, an EKG, a stress test, and an MPI were normal. Then, in April 2008, Plaintiff
presented to the emergency room with chest pain, and her x-rays showed no evidence of acute disease
process. Further, an MPI was again normal. Chest x-rays were repeated in May 2009, when Plaintiff
experienced shortness of breath. However, no changes were noted from the 2008 chest x-rays, and
Plaintiff was diagnosed with stable cardiomegaly. A carotid doppler performed in March 2009 was also
normal. Tr. 13. Given the fact that Plaintiff’s borderline cardiomegaly was noted to be stable in 2009,
we find substantial evidence to support the ALJ’s determination that this impairment was non-severe.
The record also corroborates that Plaintiff had been diagnosed with COPD. And, it is clear from
the evidence that she continued to suffer from COPD flare-ups, in spite of the medications prescribed.
However, records also indicate that Plaintiff was a smoker. Initially, she was smoking three packages
of cigarettes per day. Although Plaintiff did reduce her intake of cigarettes to one and a half packages
per day, she did not completely quit smoking until shortly before the administrative hearing. Her doctors
repeatedly advised her to quit smoking.
A review of the literature concerning COPD reveals that cigarette smoking is the leading cause
http://www.nhlbi.nih.gov/health/health-topics/topics/copd/ (January 12, 2012). “By far, the most
important and effective treatment for COPD is stopping smoking, which results in improvement in lung
function during the first year after quitting and a return to a normal rate of change in lung function
http://www.mayoclinic.org/copd/treatment.html (January 12, 2012). On the other hand, continued
smoking can cause a rapid deterioration in lung condition for COPD patients. See National Heart Lung
and Blood Institute. We note that failure to heed the advice of doctors and stop smoking when directed
to do so in order to alleviate or mitigate an existing impairment is grounds for denial of benefits. See 20
C.F.R. § 404.1530 (1990); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005); Kisling v. Chater,
105 F.3d 1255, 1257 (8th Cir. 1997).
We also note that Plaintiff’s last appointment for symptoms associated with her COPD occurred
in May 2009, approximately eleven months prior to the ALJ’s decision. Given the frequency of her prior
treatments for COPD, it seems that Plaintiff’s condition had either improved or stabilized. Accordingly,
we can not say that Plaintiff’s COPD was disabling. Accordingly, we can not say that her condition was
Plaintiff was also obese, being five feet two inches tall and weighing approximately 220 pounds.
And, it is clear that her obesity contributed to her limited mobility and increased health risk. However,
records indicate that doctors repeatedly advised her to lose weight, watch her diet, and exercise. Plaintiff
failed to heed their advice. See Guilliams, 393 F.3d at 802.
Treatment notes also indicate that Plaintiff was treated for arthritis. However, doctors prescribed
only conservative treatment for her arthritis. 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). In fact, Plaintiff only sought out treatment for pain associated with arthritis on three
occasions during the relevant time period. Tr. 389, 401, 477. She testified that her condition worsened
about two years prior to administrative hearing (October 2007), although she continued to work until
2008. Tr. 37-38, 52. There is simply no medical evidence to suggest any progressive disease or
deterioration of her condition at anytime relevant to the disposition of this case. 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). Accordingly, we can not say that her arthritis was as limiting as alleged.
Plaintiff was also treated for depression. We note, however, that her medication seemed to be
effective at treating her symptoms.
Plaintiff even testified at the administrative hearing that the
combination of the counseling and medication helped her cope. Between June 2006 and July 2009,
Plaintiff only sought out medication treatment from her primary care physician. See Kirby v. Astrue, 500
F.3d 705, 709 (8th Cir. 2007) (holding 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). Her symptoms seemed to be linked to multiple deaths in her
family and her son’s military service in both Iraq and Afghanistan. She was prescribed Effexor and
advised to seek out counseling for situational depression.
In early 2009, Plaintiff presented at Perspectives with complaints of irritable mood, diminished
appetite, sleep disturbance, low energy, poor concentration, feelings of hopelessness, excessive worry,
and short-term memory impairment. Tr. 504-505, 510. She was assessed with marginal insight; mildly
low intelligence, although no actual intelligence testing was performed; and, moderate depressive
disorder. However, Plaintiff was noted to be fully oriented; exhibited normal attention and concentration;
exhibited intact memory; exhibited a bright and flat affect and a depressed mood; exhibited normally
logical and responsive thought processes and normal thought content; and exhibited normal and intact
judgment. Tr. 519-520. In June and mid-July 2009, although Plaintiff actually reported some
improvement in her symptoms, she was assessed with a severe level of depression via GAF scores of 35
and 40. Dr. Withernigton even noted that her condition had improved, yet continued to rate her GAF
extremely low. On July 31, 2009, Dr. Witherington again indicated that Plaintiff’s depressive disorder
was stable, but assessed her with a GAF of 40.
In August 2009, Robin Sanders, Plaintiff’s alleged counselor, completed a mental RFC
assessment indicating that Plaintiff experienced marked to moderate symptoms in many areas of
functioning. Plaintiff argues that the ALJ failed to give Ms. Sanders’ opinion controlling weight. She
contends Ms. Sanders was a part of a treatment team at Perspectives. Ms. Sanders saw her for counseling
while Dr. Witherington handled her medication management. Although the ALJ does not that Ms.
Sanders was a counselor, and therefore not considered an acceptable source, the main problem with Ms.
Sanders’ opinion is not her credentials as a mere counselor. The problem lies in the fact that there is
simply no medical evidence to support the limiting assessment she provided. The record is totally void
of any counseling notes to indicate Plaintiff ever actually saw Ms. Sanders for counseling sessions, the
number of sessions provided, the frequency of those sessions, and Plaintiff’s level of functioning at the
time of those sessions. We have only an RFC assessment from Ms. Sanders with no supporting
Even if we consider Ms. Sanders’ opinion as a part of the treatment team at Perspectives, a
second problem arises. We find Plaintiff’s reported symptoms, Dr. Witherington’s overall assessment
of her condition (i.e., improved and/or stable), and the GAF scores awarded to her to be internally
inconsistent. We note that the opinion of a treating physician is accorded special deference and will be
granted controlling weight when well-supported by medically acceptable diagnostic techniques and not
inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); Prosch v.
Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000).
However, because Plaintiff reported and Dr.
Witherington noted improvement in Plaintiff’s depression, to the point of assessing her with stable
depression, all the while assessing her with lower and lower GAF scores, we find his records to be
internally inconsistent and inconsistent with the overall medical records concerning Plaintiff’s level of
mental impairment. Accordingly, we can not give them controlling weight.
After reviewing all of the evidence documenting Plaintiff’s depression and anxiety, we find
substantial evidence to support the ALJ’s conclusion that Plaintiff had mild restrictions with regard to
activities of daily living; moderate difficulties in social functioning and concentration, persistence, and
pace; and, no episodes of decompensation. Tr. 14.
Activities of Daily Living:
Plaintiff’s own reports concerning her daily activities also undermine her claim of disability. On
an adult function report dated November 6, 2008, Plaintiff reported the ability to care for her pets, care
for her own personal hygiene, prepare simple meals daily, do the laundry, wash dishes, clean the
bathroom, drive a car, go outside once per week, shop in stores for groceries and household items, pay
bills, count change, handle a savings account, use a checkbook/money orders, read, watch television, and
talk to her friends on the phone. Tr. 100-203. She also stated that she could follow written and oral
instructions, get along well with authority figures, and handle changes in routine. Tr. 204. 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). Further, Plaintiff also worked until 2008. Tr. 37-38.
Absent a showing of deterioration, working after the onset of an impairment is some evidence of an
ability to work. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.2005); Gowell v. Apfel, 242 F.3d 793,
798 (8th Cir.2001).
The ALJ’s RFC Assessment:
We next examine the ALJ’s RFC assessment. RFC is the most a person can do despite that
person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability claimant has the burden of establishing
his or his RFC. See Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.2004). “The ALJ determines a
claimant’s RFC based on all relevant evidence in the record, including medical records, observations of
treating physicians and others, and the claimant’s own descriptions of his or his limitations.”
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). 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).
The ALJ properly considered plaintiff’s subjective complaints, the objective medical evidence,
and the RFC assessments of the non-examining, consultative doctors. On December 15, 2008, Dr.
Ronald Crow completed a physical RFC assessment. Tr. 408-414. After reviewing her medical records,
he concluded that her physical impairments were non-severe. Tr. 408-414.
On March 4, 2009, Dr. Jim Takach completed a physical RFC assessment. Tr. 433-440, 441-448.
He, too, reviewed Plaintiff’s medical records and concluded Plaintiff could perform light work involving
occasional climbing, balancing, stooping, kneeling, crouching, and crawling and no concentrated
exposure to extreme cold or heat, fumes and odors, or hazards. Tr. 441-448.
As discussed above, the evidence does reveal that Plaintiff was diagnosed with borderline
cardiomegaly, COPD, arthritis, obesity, and depression. By the time of the ALJ’s decision in this case,
both Plaintiff’s cardiomegaly had been assessed as stable. Further, it had been approximately eleven
months since Plaintiff’s last treatment for COPD, at which time she was prescribed Symbicort. At the
hearing, Plaintiff did testify that she had stopped smoking just prior to the hearing, after a five month
battle with quitting. Accordingly, it seems clear to the undersigned that her lung condition may have
actually improved. At any rate, an eleven month lapse in the need for treatment is at least some evidence
that her condition had stabilized.
Plaintiff’s depression had also stabilized on medication. And, we note that Plaintiff reported the
ability to shop in stores, handle her own finances, drive a care, talk on the telephone, watch television,
read, get along with authority figures, and handle changes in routine. Although we do agree that Plaintiff
would likely experience difficulty working with the general public, we find these activities to be
inconsistent with a finding of total disability. Substantial evidence supports the ALJ’s determination that
Plaintiff maintained the residual functional capacity (“RFC”) to perform unskilled light work involving
limited interaction with others; occasional climbing, balancing, stooping, kneeling, crouching, and
crawling; and, no concentrated exposure to temperature, humidity, and airborne irritants.
Vocational Expert’s Testimony:
Testimony from a vocational expert based on a properly-phrased hypothetical question
constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996); cf. Hinchey
v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does not encompass all relevant
impairments, VE’s testimony does not constitute substantial evidence to support the ALJ's decision). The
ALJ’s hypothetical question needs to “include only those impairments that the ALJ finds are substantially
supported by the record as a whole.” Id. (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see
also Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir.1994).
The vocational expert testified that a person of plaintiff’s age, education, and work background
with the above RFC, could still perform work as a sorters, hand inspector/packager, and inspectors. Tr.
63. As the hypothetical questions posed to the expert contained the impairments the ALJ found to be
supported by the record, we find substantial evidence to support the ALJ’s determination that plaintiff
could perform these jobs.
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 17th day of January 2012.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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