Chamness v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 8, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CAROLYN W. COLVIN1, Commissioner
of Social Security Administration
Plaintiff 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) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(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 an applications for SSI on June 2, 2010, alleging an onset date of June
1, 2009, due to plaintiff’s advanced cirrhosis (T. 151). Plaintiff’s applications were denied
initially and on reconsideration. Plaintiff then requested an administrative hearing, which was
held on September 6, 2011. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 54 years of age and possessed a
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
12th grade education. The Plaintiff had past relevant work (“PRW”) experience as a dairy
stocker, general laborer, and warehouse employee (T. 152).
On January 24, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s cirrhosis of the liver and anxiety disorder did not meet or equal any Appendix
1 listing. T. 15. The ALJ found that plaintiff maintained the residual functional capacity
(“RFC”) to perform medium work involving no more than incidental contact with co-workers,
supervisors, or the general public. T. 17. With the assistance of a vocational expert, the ALJ
then determined Plaintiff could perform his past relevant work as a Highway Maintenance
Worker. T. 22.
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. 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 the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
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 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. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits. 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).
The court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is supported by substantial
A. Step Two Analysis:
The Plaintiff contends the ALJ committed error in failing to find that his numbness in his
leg, tremors in his hands, muscle wasting and atrophy, and varicose veins constituted a severe
impairment. (ECF No. 12, pp. 9-10).
Step two of the regulations involves a determination, based on the medical evidence,
whether the claimant has an impairment or combination of impairments that significantly limits
the claimant's ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii) At step two of the sequential evaluation process, the claimant bears the burden
of proving that he has a severe impairment. Nguyen v. Chater, 75 F.3d 429, 430-431 (8th Cir.
1996). An impairment or combination of impairments is not severe if there is no more than a
minimal effect on the claimant’s ability to work. See, e.g., Nguyen, 75 F.3d at 431. A slight
abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on
the ability to do basic work activities is not a severe impairment. SSR 96-3p, 1996 WL 374181
(1996); SSR 85-28, 1985 WL 56856 (1985).
The only claim the Plaintiff advanced when he filed for disability was “advanced
cirrhosis”. (T. 151). The fact that the plaintiff did not allege the impairment as a basis for his
disability in his application for disability benefits is significant, even if the evidence of the
impairment was later developed. See Smith v. Shalala, 987 F.2d 1371, 1375 (8th Cir.1993);
Dunahoo v. Apfel, 241, F. 3d 1033, 1039 (8th Cir. 2001).
The Plaintiff’s activities of daily living also supported the ALJ’s determination that the
complaints of numbness, tremors, muscle wasting and atrophy, and varicose veins were not
sever. The Plaintiff acknowledged that he had no difficulties with personal care (T. 166),
prepared his own meals, did housework, and cut the yard on a ridding lawn mower. (T. 167). He
indicated he could walk, drive a car, and did his own shopping. (T. 168). In addition the Plaintiff
lived with and took care of his invalid father although he claims to have received help from his
sisters from time to time.
These activities do not support plaintiff’s claim of disability. 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).
The court finds that the ALJ properly determined that the Plaintiff’s numbness, tremors,
muscle wasting and atrophy, and varicose veins were not severe.
B. Residual Functional Capacity:
At step four the ALJ determined that Plaintiff retained the residual functional capacity to
perform medium level work, except that he was limited to work involving no more than
incidental contact with co-workers, supervisors, or the general public (Tr. 17, Finding 4). See
20C.F.R. § 416.967(c) (“Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighting up to 25 pounds. If someone can do medium
work, we determine that he or she can also do sedentary and light work” ). Plaintiff complains
that the ALJ did not consider all of his alleged impairments in the residual functional capacity
determination. See Plaintiff’s Appeal Brief (Pl.’s Br.) at 10.
In determining a claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’
” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2002)). Assessing and resolving credibility issues is a matter that is properly
within the purview of the ALJ. Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will
not substitute its own credibility opinion for that of the ALJ). As the Eighth Circuit has
observed, “Our touchstone is that [a claimant’s] credibility is primarily a matter for the ALJ to
decide.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). The court should , “ defer to
the ALJ's determinations regarding the credibility of testimony, so long as they are supported by
good reasons and substantial evidence.” Perks v. Astrue 687 F.3d 1086, 1091 (C.A.8
(Ark.),2012). “The ALJ is not required to discuss each Polaski factor as long as the analytical
framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.2004).
While it is commendable that the Plaintiff stopped drinking alcohol after he was
diagnosed with cirrhosis of the liver he was repeatedly told to stop smoking as well by his
treating physician. (T. 245, 212, 350, 263). Notwithstanding the admonition to quit smoking the
Plaintiff continued to disregard the doctor’s orders and smoke. (T. 350, 355, 362). In addition to
the results of objective medical tests, an ALJ may properly consider the claimant's noncompliance with a treating physician's directions, Holley v. Massanari, 253 F.3d 1088, 1092 (8th
Cir.2001), including failing to quit smoking. Kisling v. Chater, 105 F.3d 1255, 1257 (8th
Cir.1997); Choate v. Barnhart 457 F.3d 865, 872 (C.A.8 (Mo.),2006). See Holley v. Massanari,
253 F.3d 1088, 1092 (8th Cir. 2001) (ALJ may properly consider noncompliance with medical
treatment in weighing a claimant’s credibility).
This court concludes that, because the ALJ gave several valid reasons for the ALJ's
determination that Plaintiff was not entirely credible, the ALJ's credibility determination is
entitled to deference, see Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir.2012);
2. RFC Determination
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
On June 1, 2009, Plaintiff was admitted into the St. Edward Mercy Medical Center (St.
Edward), and examined by Emad A. Al Ghussain, M.D., for complaints of abdominal pain and
swelling (Tr. 243-244). Dr. Ghussain reported that prior to the instant admission Plaintiff
essentially had no medical history, he abused tobacco, had an extensive history of alcohol abuse,
and continued to drink on a regular basis (Tr. 243). Dr. Ghussain reported the presence of edema
in both legs, a slight tremor in the upper extremities, but his heart and lungs were normal (Tr.
243). Dr. Eduardo A. De Mondesert, M.D., gastroenterologist, performed a series of two
paracentesis procedures to remove fluid from the abdomen, which relieved Plaintiff’s abdominal
pain (Tr. 244). Dr Dr. Ghussain diagnosed Plaintiff with alcoholic liver cirrhosis, alcohol abuse,
and ascites (improving)4 (Tr.244). Prior to discharge, Dr. Ghussain prescribed medications for
treatment of liver inflammation, mild hypothyroidism, and a multivitamin (Tr. 244). Also, Dr.
Ghussain advised Plaintiff to stop abusing tobacco and alcohol, and referred him to William
Dudding, M.D., family physician (Tr. 244).
On July 29, 2009, Plaintiff presented to William Dudding, M.D. (Tr. 280). On
examination, Dr. Dudding reported that Plaintiff looked older than his stated age, but that his
abdomen had improved, and he found no point tenderness or ascites (Tr. 210). Plaintiff’s lower
extremities were free of clubbing, cyanosis and edema, which further indicated that his general
health improved since his previous examinations by Dr. Ghussian (Tr. 211). Dr. Dudding advised
Plaintiff to stop smoking, and noted that Plaintiff indicated that he had stopped abusing alcohol
In a follow up examination on August 28, 2009, Dr. Dudding reported that Plaintiff was
free of gastrointestinal problems, but that his muscles were showing signs of atrophy because he
was not exercising (Tr. 282). Dr. Dudding also reported that Plaintiff was concerned because his
parole officer required him to find a job (Tr. 282). The doctor gave Plaintiff a note to give to the
parole officer which indicated that he was disabled due to cirrhosis (Tr. 282, 348). The ALJ
properly discounted Dr. Dudding’s note because the determination of disability is the
responsibility of the ALJ (Tr. 21). See Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir.
2010)(holding that opinions that a claimant is disabled or unable to work concern issues reserved
to the Commissioner and are not the type of opinions which receive controlling weight).
A physical exam performed on September 17, 2009 found all of the Plaintiff’s extremities
to function within normal limits (T. 256), neurological reflexes were normal, and there was no
muscle weakness or atrophy noted (T. 257). The Plaintiff had no limitations in limb function and
his grip was 100%. (T. 257). The Physical RFC assessment performed by Dr. Norcross in
October 2010 found the Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, he
could sit, stand and/or walk for up to 6 hours in an 8 hour workday. He also found no limits on
the Plaintiff’s ability to push and/or pull. (T. 308). Dr. Norcross’ opinion was reviewed and
affirmed by Dr. Gardner on January 13, 2011. (T. 337).
The ALJ properly evaluated the opinions of a consulting physician and several treating
physicians as to Plaintiff's residual functional capacity (RFC), see Renstrom v. Astrue, 680 F.3d
1057 at 1064 (treating physician's opinion does not automatically control); Charles v. Barnhart,
375 F.3d 777, 783 (8th Cir.2004) (generally when consulting physician examines claimant only
once, his opinion is not considered substantial evidence); that Plaintiff failed to meet his burden
of demonstrating his RFC, see Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.2012); and that the
ALJ’s decision that the Plaintiff could perform medium work except that he was limited to work
involving no more than incidental contact with co-workers, supervisors, or the general public was
supported by substantial evidence.
C. Vocation Expert
Based upon the hypothetical question presented to the VE she testified that the Plaintiff
could return to his past relevant work as a Highway Maintenance Worker which was DOT
899.684-014. (T. 49).
Testimony from a vocational expert ("VE") 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). A hypothetical need not use specific diagnostic or symptomatic terms
where other descriptive terms can adequately define the claimant's impairments. Roe v. Chater,
92 f.3d 672, 676 (8th Cir. 1996).
ALJ's hypothetical to the vocational expert (VE) accounted for all of Plaintiff's proven
impairments, see Buckner v. Astrue, 646 F.3d 549, 560–61 (8th Cir.2011) (VE's testimony
constitutes substantial evidence when it is based on hypothetical that accounts for all of
claimant's proven impairments; hypothetical must include impairments that ALJ finds
substantially supported by record as a whole).
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this July 8, 2014.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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