Hevel v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 20, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
GARY D. HEVEL
Civil No. 12-2011
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Gary Hevel, 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 his claim for
a period of disability and disability insurance benefits (“DIB”) 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).
The Plaintiff filed his application for DIB on December 8, 2008, alleging an onset date of July
2, 2008, due to issues with his right hip, a hernia, issues with his spleen, anxiety, and depression. Tr.
124-130, 151, 162-163, 173, 176, 184-185.
His claims were denied both initially and upon
reconsideration. Tr. 69-71, 73-74. An administrative hearing was then held on April 1, 2010. Tr. 20-66.
Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 56 years of age and possessed the equivalent of a high
school education.1 Tr. 28, 30. He had past relevant work (“PRW”) as a mobile auto glass installer and
machine operator/stocker. Tr. 17, 158-161, 205.
On September 28, 2010, the Administrative Law Judge (“ALJ”) concluded that, although severe,
Plaintiff’s somatoform disorder, COPD, and hepatitis C did not meet or equal any Appendix 1 listing.
Plaintiff had also completed six or nine hours of college credit at a Junior College in Kansas City, but he did not
earn a degree or any type of certification. Tr. 30.
Tr. 12-14. The ALJ determined that Plaintiff maintained the residual functional capacity (“RFC”) to
perform medium level work, but
[t]the claimant is to avoid even moderate exposure to dusts, fumes, gases, odors, and
poor ventilation. The claimant can understand, remember, and carry out simple, routine,
and repetitive tasks and respond appropriately to supervisors, co-workers, and usual
work situations, but can have only occasional contact with the general public. The
claimant can perform low stress work (defined as occasional decision-making and
occasional changes in work place settings).
Tr. 14. With the assistance of a vocational expert, the ALJ then found that plaintiff could perform work
as a metal furniture assembler, kitchen helper, and cook helper. Tr. 18.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on December 15, 2011. 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 No. 14, 15.
The court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ appeal briefs and the ALJ’s decision and are repeated here only to the extent
This court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining the record
to find substantial evidence in support of the ALJ’s decision; we also consider evidence in the record
that fairly detracts from that decision.” Id. As long as there is substantial evidence in the record to
support the Commissioner’s decision, the court may not reverse the decision simply because substantial
evidence exists in the record to support a contrary outcome, or because the court would have decided the
case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If we find it possible “to draw
two inconsistent positions from the evidence, and one of those positions represents the Secretary’s
findings, we must affirm the decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his disability by establishing a physical or mental disability that has lasted at least one year and
that prevents him 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 disability,
not simply his impairment, has lasted for at least twelve consecutive months.
The Evaluation Process:
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 or 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 or 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 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).
Plaintiff contends that the ALJ erred in concluding that he was not disabled because: 1) the ALJ
failed to find Plaintiff’s cognitive impairment (variously diagnosed as dementia, delirium), hepatic
encephalopathy (resulting in difficulty with gait and balance and significantly slowed fine manual
dexterity/weak grip), and chronic pain syndrome to be severe impairments; 2) the ALJ erred in his
assessment of Plaintiff’s treating source opinions; and, 3) the ALJ’s RFC assessment was not supported
by substantial evidence. We disagree.
In Plaintiff’s first issue, he alleges that the ALJ erred in failing to find his cognitive impairment,
hepatic encephalopathy, and chronic pain syndrome to be severe impairments. The regulations provide
that, “[i]f you do not have any impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find that you do not have a severe
impairment.” 20 C.F.R. § 404.1520(c); see also 20C.F.R. § 404.1521 (stating that an impairment is not
severe if it does not significantly limit your ability to do basic work activities). A “severe impairment
is defined as one which ‘significantly limits [the claimant’s] physical or mental ability to do basic work
activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. § 404.1520(c)).
In reviewing the evidence in this case, we note that Plaintiff has not consistently sought out
treatment for his alleged cognitive impairment/hepatic encephalopathy. See Edwards v. Barnhart, 314
F.3d 964, 967 (8th Cir. 2003) (holding that ALJ may discount claimant’s subjective complaints of pain
based on failure to pursue regular medical treatment). In May 2009, he was treated by Dr. John Kientz
for complaints of painful scores on his scalp and problems with his memory. Tr. 275-278. At this time,
he did not know the day of the week or the date, but he knew the season, month, and the year. Plaintiff
reported nervousness, especially in crowds, and problems with sporadic sleep disturbance. Dr. Kientz
diagnosed him with dementia or depression, dermatitis or vasculitis, hepatitis C, a ventral hernia, and
COPD. Plaintiff returned to Dr. Kientz’s office on June 15, 2009, to review his test results. Tr. 274,
310-311. Again, Dr. Kientz diagnosed him with dementia, depression, chronic pain syndrome, COPD,
hepatitis C, and dermatitis. There was some question as to whether the dermatological issues could also
be neurological. On July 2, 2009, Plaintiff was hospitalized due to frequent falls, delirium, and
disorientation. Tr. 287-303. According to his wife, his behavior had become increasingly erratic and
at times violent. A CT scan of his brain showed mild generalized atrophy in a nonspecific pattern most
consistent with small-vessel disease. X-rays of his chest showed COPD with mild infiltrative or fibrotic
changes in both lower lung fields. Dr. Kiertz noted that Plaintiff’s history of alcohol abuse and that he
had not been taking the Chronulac2 at home as prescribed. Therefore, he was restarted on Chronulac and
given Haldol, Albuterol updraft treatments, and Rocephin. Ativan was also ordered. A psychiatric
evaluation was ordered to determine whether Plaintiff was applicable for Senior Care. Although the
evaluation is not included in the record, it is noted that he did not qualify. Plaintiff was released home
on July 5, 2009, with diagnoses of delirium, hepatic encephalopathy3 with elevated blood ammonia,
cirrhosis, and a history of alcoholism. Tr. 286. Plaintiff was prescribed Diazepam and Thergran N. At
the time of discharge, Plaintiff was stable, ambulatory, and in no distress. And, Plaintiff sought no
further treatment for his alleged cognitive dysfunction/hepatic encephalopathy.
We note that the mental evaluations/cognitive assessments conducted in connection with his
application for disability also failed to provide support for his claim. On February 16, 2009, Dr.
Kathleen Kralik conducted a Mental Diagnostic Evaluation. Tr. 220-227. She did note that her
impressions/diagnosis were based on the information available to her and were considered
Chrondulac is a stool softener used to treat or prevent the complications of liver disease (hepatic
encephalopathy). See Chronulac Oral, http://www.webmd.com/drugs/drug-6725-chronulac+oral.aspx?drugid=
6725&drugname=chronulac+oral (last accessed December 20, 2012).
Hepatic encephalopathy is a deterioration of brain function that occurs because toxic substances normally
removed by the liver build up in the blood and reach the brain. See Hepatic Encephalopathy,
athy.html (Last accessed December 19, 2012). It is often triggered by bleeding in the digestive tract, an infection, failure to
take drugs as prescribed, and alcohol consumption. Id.
preliminary/provisional. And, she felt that a more formalized, comprehensive psychological assessment
would be required for a more definitive diagnosis. However, many of her notations are worthy of
recitation. First, Dr. Kralik indicated that Plaintiff seemed to be dramatic and evasive and exaggerated
his ongoing mental symptoms, especially when asked about his improvement on Citalopram. He alleged
memory problems, disorientation, confusion, and hepatitis C, but indicated that he still consumed alcohol
on a daily basis. And, Plaintiff admitted to having low motivation prior to getting sick and denied a
history of mental health/substance abuse treatment. Plaintif was fully oriented and in touch with reality,
but he put forth low mental effort, tending to defer to others to do the thinking for him when he was
capable to preforming these tasks for himself. Plaintiff even acknowledge there was nothing about his
cognitive or mental condition that would theoretically preclude participation in gainful occupational
endeavors. He exhibited no difficulty processing or comprehending instructions and his speech was
easily understood. Dr. Kralik concluded that the evasiveness and distortions evident in his report likely
reflected a generally deceptive style associated with his personality issues more so than a true inability
to communicate in a direct, honest, and effective manner. His ability to attend and sustain concentration
on basic tasks was adequate for occupational purposes, his capacity to sustain persistence in completing
tasks seemed adequate for occupational purposes though motivational issues had been chronic, and his
capacity to complete work-like tasks within an acceptable time frame was adequate. However, Plaintiff
was not able to manage his own funds. Dr. Kralik diagnosed him with psychological factors affecting
medical condition (maladaptive health behaviors; non compliance with medical directives);
polysubstance dependence: nicotine and alcohol dependence (at minimum), ongoing; intermittent abuse
of prescription drugs (e.g., codeine and sleeping pills); IV methamphetamine abuse and longstanding
marijuana dependence allegedly in sustained remission; and Personality Disorder not otherwise specified
(with antisocial, narcissistic, histrionic parasitic-dependent with passive-aggressive personality features.
She estimated his global assessment of functioning score to be between 45 and 55. Tr. 225. Dr, Kralik
also stated that Plaintiff did not seem motivated to stop the behaviors that exacerbated his alleged
physical symptoms such as smoking and alcohol consumption.
On January 22, 2010, Dr. Patricia Walz conducted an assessment of Plaintiff’s cognitive
functioning. Tr. 333. Again, he reported problems with memory, stating that he had been fired from a
job because he could not remember to clock in. Plaintiff felt his memory problems were getting worse
over time. Dr. Walz noted that his speech was somewhat dysarthric and he did not follow instructions
well. He also experienced problems with visual scanning and difficulty finding items on the page. On
the Dementia Rating Scale his score was in the severely impaired range. And, he scored significantly
below average on tests of initiation/perseveration, conceptualization, and memory. On the California
Verbal Learning Test he demonstrated significant impairment in free recall, and scored within the
impaired range on the Aphasia Screen. His fine manual dexterity was significantly slowed bilaterally,
his grip was weak bilaterally, and he demonstrated possible left hemianopsia. Tr. 339-340. Dr. Walz
concluded that Plaintiff demonstrated significant impairment in areas of memory, complex problem
solving, comprehension, initiation/perseveration, and motor skills. His wife reported a history moodiness
and alcohol abuse which suggested a premorbid mood disorder, possibly bipolar type. She did not
conduct a comprehensive neuropsychological evaluation, so the etiology of his impairment was not clear.
However, Dr. Walz indicated that contributing etiologies could be traumatic brain injury, alcohol abuse,
or early onset Alzheimer’s Disease. She recommended a comprehensive neuropsychological evaluation.
Dr. Walz further opined that he would definitely need continued supervision of finances and medication
due to his poor judgment and memory impairment. Tr. 340. And, she diagnosed him with a cognitive
impairment of unknown etiology and a history of alcohol abuse versus dependence and assessed him
with a GAF of 30-35.
Dr. Walz also completed a Medical Source Statement of Ability to do Work-Related Activities
(Mental) finding that he had marked limitations in his ability to make judgments on simple work-related
decisions and understand, remember, and carry out complex instructions. Tr. 341. She felt that his
problems probably dated back to his car accident in 1999, during which he sustained a head injury and
was hospitalized for seven days.4
On May 4, 2010, Dr. Walz was asked to reevaluate Plaintiff and complete a comprehensive
neuropsychological evaluation. Tr. 344-351. He was slow to respond, a bit irritable and edgy, and
frequently scowled. Plaintiff seemed oblivious to time constraints and exhibited poor frustration
tolerance, but persisted when prompted to do so. He looked disgusted and discouraged. His fine manual
dexterity was extremely slow and his grip was weak bilaterally. Tr. 349. Dr. Walz noted that his effort
was far below individuals who had sustained severe brain injuries and was within the range of random
responding, rendering his test results suspect. Testing revealed a full scale IQ 75, signifying borderline
intellectual functioning. Dr. Walz’s diagnostic impression was probable cognitive deficits secondary
to a traumatic brain injury and anoxia, polysubstance abuse in questionable remission, and antisocial
traits. She assessed him with a GAF between 45 and 50. Tr. 351. However, given his lack of effort and
the absence of medical records to determine the severity of his head injury, she could not make a
definitive diagnosis regarding his cognitive impairment.
We note that two of the three psychological/neuropsychological exams revealed a lack of effort
on Plaintiff’s part, making it impossible to render a definitive diagnosis regarding any alleged cognitive
impairment. Some exaggeration of impairments was also noted by Dr. Kralik. And, of course, we note
Plaintiff’s own failure to refrain from the consumption of alcohol and failure to take his medications as
prescribed in spite of his hepatitis C, which we note are both contributing factors in hepatic
encephalopathy. 20 C.F.R. § 404.1530 (1990) ( To receive Social Security disability benefits, a claimant
must follow treatment prescribed by his physician if such treatment will restore his ability to work. ).
Also of significance is the fact that Plaintiff’s hepatic encephalopathy was responsive to treatment and
The record does not, however, contain any medical records to document said head injury.
that he was hospitalized for it on only on occasion. Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir.
2009) (holding conditions which can be controlled are not disabling); Edwards, 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). At the time of discharge, he was stable, ambulatory, and in no
distress. And, no further treatment was sought for this impairment. Accordingly, we can not say that
the ALJ erred in concluding that Plaintiff’s alleged cognitive/mental impairments were not severe.
As for Plaintiff’s alleged difficulty with gait, balance, and grip, we note that Plaintiff did not
allege these impairments in his application for disability. See Dunahoo v. Apfel, 241 F.3d 1033, 1039
(8th Cir. 2001) (holding fact that claimant did not allege disabling condition in his application is
significant). We also fail to find evidence to indicate that these impairments were severe. While it is
true that Dr. Walz noted slowed fine manual dexterity/weak grip in both of her
psychological/neuropsychological evaluations, there is no evidence that Plaintiff sought out treatment
for these symptoms. 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). And, Plaintiff testified that his hobbies
included building model airplanes, which requires a certain amount of manual dexterity. Tr. 52.
Plaintiff was hospitalized in July 2009 for hepatic encephalopathy, at which time he reported
falling several times and underwent some therapy, but the record is devoid of any additional medical
evidence to indicate that Plaintiff continued to experience difficulties with this. And, although we do
note Plaintiff’s use of a cane to help him stand up, we also note his own admission that the cane had not
been prescribed by a physician and that he did not need it to walk. Tr. 30, 337. Therefore, given the
definition of a severe impairment, we can not say the ALJ erred in concluding these impairments were
Concerning Plaintiff’s chronic pain, we believe that this impairment was taken into consideration
when the ALJ concluded that Plaintiff’s hepatitis C constituted a severe impairment. A review of the
symptoms associated with hepatitis C include fatigue, fever, nausea or poor appetite, muscle and joint
pains, and tenderness in the area of the liver. Clearly, this would result in chronic pain. See Hepatitis
C, http://www.mayoclinic.com/health/hepatitis-c/DS00097/DSECTION=symptoms (last accessed
December 19, 2012). And, we note that Plaintiff failed to seek out consistent treatment for his alleged
pain. Edwards, 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). In November
2008, he was prescribed Naproxen for body pain, but the remainder of his medical records are centered
around treatment for bronchitis/asthma and an infection on his scalp. His own statement that he was able
to play with his grandson, prepare simple meals, wash dishes, take out the trash, go outside one or two
times per day, and walk for exercise also undermines his allegations of disabling chronic pain. Tr. 164171, 186-193. Accordingly, we can not say that Plaintiff’s chronic pain was severe.
Plaintiff next contends that the ALJ erred in weighing his treating source statements. Generally,
a treating physician’s opinion is given more weight than other sources in a disability proceeding. 20
C.F.R. § 404.1527(c)(2). Indeed, when the treating physician’s opinion is supported by proper medical
testing, and is not inconsistent with other substantial evidence in the record, the ALJ must give the
opinion controlling weight. Id. “However, [a]n ALJ may discount or even disregard the opinion of a
treating physician where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the credibility of
such opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (alteration in original) (internal
quotation omitted). The Eighth Circuit has held that the resolution of conflicting evidence is within the
province of the ALJ. See Brachtel v. Apfel, 132 F.3d417, 420 (8th Cir. 1997).
On February 4, 2010, Dr. Kientz completed an Attending Physician’s Statement. Tr. 332. He
indicated that he had been treating Plaintiff since 1980. Dr. Kientz diagnosed Plaintiff with chronic pain
syndrome involving the body/hips; COPD with asthma; chronic hepatitis C with cirrhosis; neuro
dermatitis; and, dementia with hepatic encephalopathy. He concluded that Plaintiff’s symptoms were
severe enough to interfere with his attention and concentration, and to affect his ability to tolerate work
stress. It was Dr. Kientz’s opinion that Plaintiff would need to take unscheduled breaks during an eight
hour work shift, and would likely be absent from work about two days per month. He further indicated
that Plaintiff could not tolerate any exposure to dust, fumes or gases, secondary to his COPD and asthma.
Dr. Kientz indicated that Plaintiff’s mental status was his greatest limitation, while pain in his lower back
and bilateral hips were his next most limiting features necessitating use of a cane for uneven ground and
stairs. Tr. 332.
However, we note that Dr. Kientz treated Plaintiff on only three occasions during the relevant
time period. A review of those records reveals that he did not treat Plaintiff for back or hip pain,
although he indicates that it is Plaintiff’s second most limiting condition. Further, when Dr. Kietz
released Plaintiff from the hospital, which was his last occasion to treat Plaintiff prior to rendering his
opinion, Plaintiff was reportedly stable and ambulatory. No limitations were noted. And, Dr. Kientz
offered no explanation or rationale for his assessment and pointed to no objective medical evidence to
support his conclusions. As such, the ALJ was clearly within his province in concluding that Dr.
Kientz’s assessment was not supported by the overall evidence, and giving it less weight.
Plaintiff also questions the ALJ’s consideration of Dr. Walz’s assessments. We note that Dr.
Walz’s January 2010 assessment does not find support in the record for several reasons. First, it
conflicts with the assessment conducted by Dr. Kralik in 2009. Second, it is called into question by her
own statement that neuropsychological testing was necessary to determine the etiology and severity of
Plaintiff’s purported cognitive limitations and her May 2010 assessment. The second assessment
complete with neuropsychological testing revealed minimal effort on the part of the Plaintiff and proved
inconclusive. In fact, she could not even provide a conclusive diagnosis.
It is also significant to note that Dr. Walz treated Plaintiff on only two occasions, hardly enough
to call her a treating physician. And, absent these assessments conducted in connection with his
disability application, Plaintiff reported no history of mental health treatment or evaluation. 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 significant consideration when evaluating allegations
of disability due to a mental impairment). Therefore, while the ALJ did consider her report, he was not
required to give it controlling weight. It is clear to the undersigned that Plaintiff was capable of
understanding, remembering, and carrying out simple, routine, and repetitive tasks; responding
appropriately to supervisors, co-workers, and usual work situations; having only occasional contact with
the general public; and performing low stress (defined as occasional decision-making and occasional
changes in work place settings) work.
Lastly, Plaintiff contests the ALJ’s determination that he should avoid even moderate exposure
to dust, fumes, and gases. He argues that Dr. Kientz indicated that he should have no exposure to these
elements. When the ALJ questioned the vocational expert regarding the availability of work for an
individual who can have no exposure to these elements, the expert indicated that there were no jobs
where you could guarantee that an individual would not be exposed to dust, fumes, or gas. And, the
undersigned understands that some exposure to dust and fumes--whether they be in the form of another’s
perfume in an elevator, fumes from a vehicle in a driveway or parking lot, or fumes from industries in
the area--is inevitable in daily life. Accordingly, we find that the ALJ’s determination that Plaintiff
should avoid even moderate exposure to these elements was sufficient in this case. See Buckner v.
Astrue, 646 F.3d 549, 561(8th Cir. 2011) (holding the ALJ’s hypothetical need not frame impairments
in specific diagnostic terms, but instead should capture the concrete consequences of Plaintiff’s
Likewise, we find substantial evidence to support the ALJ’s determination that Plaintiff could
perform medium level work with the mental and environmental limitations outlined above. Plaintiff’s
failure to seek consistent treatment for his impairments, lack of prescription pain medications, continued
use of alcohol in spite of his hepatitis C, failure to take his medication as prescribed, and daily activities
contained in his adult function reports all weigh against his subjective complaints.
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 20th day of December 2012.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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