Smith v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 8, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

ROBERT L. SMITH
v.

PLAINTIFF
Civil No. 10-3025

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Robert L. Smith, appeals from the decision of the Commissioner of the Social

Security Administration denying his applications for disability insurance benefits (“DIB”) and
supplemental security income benefits (“SSI”), pursuant to §42 U.S.C. 405(g).
Plaintiff protectively filed his DIB and SSI applications on December 4, 2003, alleging a
disability onset date of November 23, 2003, due to residual chest pain following a four-wheeler
accident, shortness of breath, dizziness, depression, and back, neck, and shoulder pain. Tr. 14, 4951, 287-291, 462-483. At the time of the onset date, Plaintiff was thirty-eight years old with a
seventh grade education. Tr. 82, 355, 398, 514. He has past relevant work as land surveyor. Tr. 71,
93-96, 101, 463-466, 514.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 29-30, 36-37,
294-295, 301-303. At Plaintiff’s request, an administrative hearing was held on October 13, 2005.
Tr. 304-336. The ALJ rendered an unfavorable decision on September 26, 2006. Tr. 11-22.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review, thus making the ALJ’s
decision the final decision of the Commissioner. Tr. 5-7.
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On June 22, 2007, Plaintiff filed an action in this Court seeking judicial review of the
administrative decision. Smith v. Astrue, 3:07-cv-03027-JLH (W.D. Ark. closed June 24, 2008).
By order dated June 24, 2008, Plaintiff’s case was remanded to the Commissioner for further
development. Id., ECF No. 9. Following remand, an additional administrative hearing was held on
March 26, 2009. Tr. 391-431. Plaintiff was present at this hearing and represented by counsel. Tr.
391-431. The ALJ rendered an unfavorable decision on December 16, 2009, finding that Plaintiff
was not disabled within the meaning of the Act. Tr. 343-357. Plaintiff now seeks judicial review
of that decision.
II.

Medical History
On November 23, 2003, Plaintiff was admitted to Baxter Regional Medical Center after he

was involved in a four wheeler accident, in which he sustained a sternal fracture and a laceration to
his left eye. Tr. 118-127. Plaintiff denied loss of consciousness. Tr. 121. Chest x-rays revealed a
nondisplaced mid-sternum fracture with no evidence of effusion or pneumothorax. Tr. 119, 122-123.
Plaintiff’s lungs were expiratory with some bibasilar atelectasis. Tr. 122-123. No other bony
abnormalities were identified, and the vascularity and cardiac silhouette were within normal limits.
Tr. 122-123. Plaintiff’s left facial laceration was repaired. Tr. 119-121. An electrocardiogram
(“ECG”) revealed normal findings. Tr. 120. Additionally, telemetry and initial cardiac markers were
negative. Tr. 120. Plaintiff was discharged in stable condition on November 24, 2003. Tr. 126.
On November 25, 2003, Plaintiff presented to Caleb O. Gaston, M.D., with complaints of
chest pain and shortness of breath. Tr. 200. Upon examination, Dr. Gaston noted shallow breathing,
but good air movement, and tenderness over the inferior portion of the sternum. Tr. 200. Chest xrays revealed a mid to inferior sternal fracture, a right lower lobe infiltrate versus hematoma, and a
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right rib fracture. Tr. 200. Dr. Gaston prescribed Percocet, Zithromax, and recommended a deep
breathing routine to prevent pneumonia. Tr. 200. The following day, Dr. Gaston also prescribed a
Duragesic patch for pain control. Tr. 199.
On November 29, 2003, Plaintiff was readmitted to Baxter Regional with complaints of sharp
chest pain, lightheadedness, and shortness of breath. Tr. 128-173. Chest x-rays revealed borderline
cardiomegaly, suggestive evidence of pulmonary venous hypertension, and probable subsegmental
atelectasis in the basilar aspect of the right lower lobe. Tr. 162. A chest CT revealed a thickened
pericardium with fluid, possibly air, and a right pleural effusion with some atelectasis with a nondisplaced sternal fracture. Tr. 129, 133. An ECG was consistent with pericarditis. Tr. 133, 169-172.
Cardiac markers were negative. Tr. 133. Plaintiff’s sedimentation rate was elevated to 32. Tr. 137,
165. Plaintiff was assessed with pericarditis, probably secondary to myocardial contusion suffered
in the accident. Tr. 135.
On November 30, 2003, John Gocio, M.D., a cardiologist, examined Plaintiff and found a
small amount of hematoma in the pericardum and hematoma around the pulmonary artery and the
aorta. Tr. 136. He also found evidence of pulmonary contusion and hematoma in the right pleural
space, but not a great deal of fluid. Tr. 136. Dr. Gocio assessed Plaintiff with a mediastinal
contusion, more consistent with venous extravasation. Tr. 137. He noted there was no significant
arterial injury, but Plaintiff would need to be observed. Tr. 137. An echocardiogram (“ECHO”)
revealed moderate pericardial effusion without evidence of tamponade physiology, but normal left
ventricular function and no evidence of aortic valvular disease. Tr. 153-154. A chest CT revealed
a moderately comminuted, mildly impacted fractured sternum, a probable mixture of small
pneumopericardium and hemopericardium with minimal tamponade effect, suggestive evidence of
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possible occult or subclinical laceration of the aortic trunk, and subsegmental atelectasis of the right
lower lobe associated with hemothorax. Tr. 160-161.
On December 1, 2003, Plaintiff underwent an arch aortogram, a coronary angiography, and
a pulmonary angiography, all of which yielded normal results. Tr. 151-152. Chest x-rays revealed
mild fullness of the heart and upper mediastinum and an area of increased density involving the left
base, possibly consistent with a pulmonary contusion. Tr. 158-159. A CT of Plaintiff’s chest
revealed increasing pleural effusions, larger on the right, and effusion and atelectasis on the left. Tr.
156. A small amount of clot was noted around the base of the aorta, but there was no definite
dissection. Tr. 156. As a result, Dr. Gocio performed a thoracentesis to remove fluid from
Plaintiff’s chest. Tr. 149-150. Plaintiff tolerated the procedure well. Tr. 150. Progress notes from
December 1, 2003, reveal that Plaintiff was “clinically better” and his pericarditis was “slowly
improving.” Tr. 144. Additionally, an ECG, performed on December 4, 2003, revealed normal left
ventricular function and improved pericardial effusion without evidence of pericardial tamponade.
Tr. 147-148. At this time, Plaintiff was discharged from the hospital with prescriptions for pain
medications. Tr. 173, 178.
On December 10, 2003, Plaintiff presented to Baxter Regional with complaints of increasing
shortness of breath and chest pain. Tr. 174-193. Upon examination, Dr. Gaston noted some crackles
in the left lung base and fair air movement, although Plaintiff did not take in a very wide inspiration.
Tr. 177. Dr. Gaston also noted some tenderness over the mid-sternum. Tr. 177. A chest x-ray
revealed an enlarged heart, infiltrate in the left lower lobe suggestive of pneumonia, some atelectasis
in the right base, and pleural effusions, greater on the left. Tr. 178, 185, 198. Plaintiff was referred
to Otis Warr, M.D., a cardiologist. Tr. 178-179. Upon examination, Dr. Warr noted that Plaintiff
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was tachycardic and had an audible rub. Tr. 179. He also noted that Plaintiff had lung crackles
bilaterally. Tr. 179. An ECHO revealed moderate pericardial effusion, unchanged from prior
studies. Tr. 178, 183. An ECG revealed sinus tachycardia with nonspecific STT changes, improved
from Plaintiff’s prior admission. Tr. 179, 191. Dr. Warr assessed Plaintiff with probable pericarditis
and possible pleuritis, and prescribed Indocin. Tr. 179. On December 11, 2003, Plaintiff’s
pericarditis had improved with the use of Indocin. Tr. 181. On December 12, 2003, Plaintiff was
discharged in stable condition. Tr. 175, 192.
Following his hospitalization, Plaintiff saw Dr. Gaston at North Central Arkansas Medical
Associates. Tr. 194-202. On December 29, 2003, Plaintiff stated that he had improved since his
hospitalization, but continued to have some chest pain and shortness of breath. Tr. 196. Upon
examination, Plaintiff’s chest was clear to auscultation and he was breathing easily. Tr. 196. He had
a regular heart rate and rhythm without murmur. Tr. 196. At this time, Dr. Gaston refilled Plaintiff’s
prescription for Percocet. Tr. 196.
In a letter dated December 30, 2003, Dr. Gaston opined that Plaintiff’s prognosis for
“working anytime soon is quite poor.” Tr. 197. He anticipated that Plaintiff would need a full
twelve months of rehabilitation before he would be capable of any work. Tr. 197.
On February 20, 2004, Plaintiff saw Dr. Warr for a follow-up appointment. Tr. 203-207.
Plaintiff stated he was having some “mild popping” and chest pain in his sternum, but his breathing
had greatly improved. Tr. 203. An ECG yielded normal results with normal sinus rhythm. Tr. 204,
207.

Dr. Warr recommended that Plaintiff continue using non-steroidal-anti-inflammatory

medication (“NSAIDs”) as needed for chest discomfort. Tr. 205.

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On May 27, 2004, Plaintiff presented to R. Doug Foster, M.D., an orthopaedist, with
complaints of posterior thoracic and sternal pain. Tr. 270. A thoracic MRI showed some mild
dessication and disc narrowing at T4-T5, but was otherwise unremarkable. Tr. 269, 271. An MRI
of Plaintiff’s chest and sternum was normal, with no apparent fracture, subluxation, edema, or
destructive lesions, and no apparent masses or hematomas. Tr. 272. On July 24, 2004, Dr. Foster
noted that Plaintiff had evidence of a sternal nonunion with pain, catching, and popping in the sternal
area. Tr. 269. He referred Plaintiff to Dr. Gocio for surgical evaluation. Tr. 269.
In a letter dated July 12, 2004, Dr. Gocio noted that x-rays and an MRI of Plaintiff’s chest
were normal. Tr. 253. On physical examination, he could not appreciate any deformity, stepoff, or
clicking. Tr. 253. Dr. Gocio noted that Plaintiff could “pop his ribs on the side,” but he could not
reproduce the sound. Tr. 253. It was his belief that Plaintiff had possible injury to the costal
cartilages or the sternal junction with the costal cartilages, an area which “notoriously does not heal
well.” Tr. 253. In a follow-up letter dated July 26, 2004, Dr. Gocio noted that he saw Plaintiff to
review a bone scan and tomograms of the sternum and ribs. Tr. 211-216. Tomography revealed no
fractures. Tr. 211, 213, 258. However, calcification and changes in the costal cartilages on the right
parasternal area were noted. Tr. 213, 258. Additionally, Plaintiff’s bone scan was abnormal,
showing increased activity involving the sternomanubrial joint and the mid and lower portions of
the sternum, more pronounced on the right. Tr. 211-212, 259. It was Dr. Gocio’s opinion that the
“clicking” Plaintiff experienced was disrupted cartilage and he could offer nothing surgical to
alleviate the problem. Tr. 211. Dr. Gocio recommended continued treatment with NSAIDs. Tr.
211. He also noted that Plaintiff had filed for disability, and “if he truly has pain and is unable to
work, this will be a serious consideration for him.” Tr. 211.

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On December 17, 2004, at the request of his attorney, Plaintiff presented to Vann A. Smith,
Ph.D., for a neuropsychological evaluation. Tr. 218-225. Plaintiff related the history of his four
wheeler accident and residual pain. Tr. 218. Upon examination, Plaintiff was oriented in all spheres.
Tr. 219. His recall/declarative memory was impaired, but his judgment and insight were grossly
intact. Tr. 219. Plaintiff’s affect was flexible and full-ranging and his mood was mildly anxious and
dysthymic. Tr. 219. His narratives were fluent, logical, and informative, although somewhat
pressured and circumstantial at times.

Tr. 219.

No abnormal thought processes or

hallucinatory/delusional phenomena were observed. Tr. 219. Plaintiff denied suicidal or homicidal
ideation.
On the Wechsler Adult Intelligence Scale-Revised, Plaintiff received a verbal IQ of 91, a
performance IQ of 98, and a full-scale IQ of 93, which placed him within the average range of
intelligence. Tr. 219. Dr. Smith found no evidence of ongoing psychotic illness, disabling anxiety
disorder, addictive disease, or personality pattern disturbance. Tr. 221. However, he found the
presence of bilateral, diffuse, organic brain dysfunction of mild to moderate severity and static to
slowly progressive velocity. Tr. 221. He also found that Plaintiff suffered from traumatic brain
insult as a result of his accident, and it was his opinion that Plaintiff was disabled. Tr. 221. Dr.
Smith diagnosed Plaintiff with organic brain dysfunction and cognitive disorder, and estimated his
Global Assessment of Functioning (“GAF”) score at 65-70. Tr. 221-222.
In a Mental Residual Functional Capacity (“RFC”) Questionnaire, Dr. Smith gave Plaintiff
a fair prognosis. Tr. 224. He noted that Plaintiff suffered from difficulty thinking/concentrating,
easy distractibility, memory impairment, sleep disturbance, and psychological or behavioral
abnormalities associated with a dysfunction of the brain with a specific organic factor. Tr. 224. As

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a result, he found that Plaintiff would be unable to maintain attention for two-hour segments,
maintain regular attendance and be punctual within customary, usually strict tolerances, sustain an
ordinary routine without special supervision, 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 understand, remember, and carry out detailed
instructions. Tr. 225. Additionally, he found that Plaintiff would be seriously limited, but not
precluded, in his ability to remember work-like procedures, understand, remember, and carry out
short and simple instructions, make simple work-related decisions, respond appropriately to changes
in a routine work setting, deal with normal work stress, be aware of normal hazards and take
appropriate precautions, set realistic goals or make plans independently of others, and deal with the
stress of semiskilled and skilled work. Tr. 225. He found either slight or no limitation in all other
areas. Tr. 225.
Plaintiff presented to Mountain Home Christian Clinic (“MHCC”) on November 4, 2004,
with complaints of chronic pain and arthritis since his accident. Tr. 227-231. Upon examination,
Plaintiff had normal musculature and development of the chest, with no deformity. Tr. 229. Lung
sounds were full. Tr. 229. He had some intercostal tenderness of the anterior ribs and sternal
junction on the right, but no crepitus. Tr. 229. Plaintiff was prescribed Ultram and Indocin. Tr. 229.
On December 7, 2004, Plaintiff requested a prescription for Percocet. Tr. 228. Paul Wilbur, M.D.,
stated that he could not prescribe Percocet, but noted that he did believe Plaintiff was in pain. Tr.
228. He advised Plaintiff to apply for Medicaid or to see a specialist about the possibility of surgical
intervention. Tr. 228. On February 3, 2005, Michael S. Hagaman, M.D., noted that Plaintiff’s chest
was clear and his heart had a regular rate and rhythm. Tr. 239. He also noted that Plaintiff did not

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“appear to be in a whole lot of discomfort.” Tr. 239. Plaintiff was given refills of Indocin and
Ultram, and encouraged to go to the Pain Clinic in Springfield. Tr. 227, 239. On June 24, 2005, Dr.
Wilbur noted that Plaintiff appeared depressed. Tr. 241. Dr. Wilbur refilled Plaintiff’s prescription
for Ultram and also placed him on Lexapro for depression. Tr. 241. He suggested that Plaintiff
make an appointment at University of Arkansas for Medical Sciences for a surgical evaluation, but
noted there was little else the clinic could do for him. Tr. 241.
On January 13, 2006, Plaintiff saw Veryl D. Hodges, D.O., for a consultative physical
evaluation. Tr. 273-279. Plaintiff related the history of his automobile accident and complained of
memory problems, headaches, blurred vision, confusion, and chronic pain. Tr. 273. Mentally,
Plaintiff complained of depression, mood swings, and a temper. Tr. 274. His medications included
Percocet, Ultram, Lexapro, and Indomethacin. Tr. 274.
Upon examination, Plaintiff had well-healed scars over his left eyelid and left cheek, but no
other traumatic head injury. Tr. 274. Plaintiff’s heart rate and rhythm were normal, without
murmurs, clicks, or rubs. Tr. 274. His lungs were clear, without rales, rhonchi, or wheezes. Tr. 274.
Dr. Hodges noted that Plaintiff’s upper extremity muscle mass was greater than “would be
anticipated in an individual who had been out of work or unable to work for a year.” Tr. 275.
Examination of Plaintiff’s thorax revealed point tenderness at the costochondral margins of the
sternum, especially at the manubrium at the fourth and fifth rib connections, with more tenderness
on the left. Tr. 275. No pain was elicited on lateral and posterior palpation of the chest wall, but
tenderness was noted upon palpation of the sternum. Tr. 275. A small amount of step-off was noted
in the distal portion of the sternum and the xiphoid process was slightly elevated. Tr. 275. No
crepitus or immobility of the sternum was noted, and Plaintiff was unable to make his ribs “pop and

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crack.” Tr. 275. Plaintiff’s neurological examination was normal. Tr. 275. He could heel-to-toe
walk with a little difficulty. Tr. 275. A Romberg’s test was negative, although Tinel’s sign was
positive in the left radius. Tr. 275. Dr. Hodges assessed Plaintiff with costochondritis. Tr. 275.
In a Medical Source Statement (Physical), Dr. Hodges found that Plaintiff could occasionally
lift/carry 25 pounds, frequently lift/carry 25 pounds, stand/walk/sit for an unlimited time, and
push/pull an unlimited amount in an eight-hour workday. Tr. 277. He also found that Plaintiff could
frequently climb, balance, kneel, crouch, crawl, and stoop. Tr. 278. Dr. Hodges found no
manipulative, visual, communicative, or environmental limitations. Tr. 279-279.
On September 8, 2008, Plaintiff saw Stephen R. Harris, Ph.D., for a psychological evaluation.
Tr. 513-520. He reported residual chest pain from his accident, as well as memory impairment,
panic attacks, and depression. Tr. 514. He stated his pain level was at a four to five most of the
time. Tr. 514. Plaintiff was reportedly receiving treatment at Ozark Counseling Services. Tr. 514.
Upon examination, Plaintiff was alert and oriented times four. Tr. 515. He appeared somewhat
depressed with a slightly dysphoric affect. Tr. 514. Thought processes were spontaneous and
reasonably well-organized. Tr. 514. Thought content was notable for feelings of persecution. Tr.
515. Plaintiff denied suicidal ideation, homicidal ideation, and hallucinations. Tr. 515.
After performing various tests, Dr. Harris concluded Plaintiff was within the average range
of intelligence. Tr. 516. He assessed Plaintiff with pain disorder associated with both psychological
factors and a general medical condition and adjustment disorder with mixed anxiety and depressed
mood. Tr. 516. Dr. Harris estimated Plaintiff’s GAF score at 52. Tr. 516. He noted some
difficulties in social interaction and found that Plaintiff may be “somewhat irritable” in situations
where he must perform basic work-like tasks, although he was intellectually capable of doing so.

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Tr. 516-517. He also noted some difficulties in the area of concentration, but observed no
difficulties in Plaintiff’s persistence. Tr. 517. Dr. Harris further noted that Plaintiff was capable of
performing tasks in an acceptable time frame unless he felt restrained by physical problems. Tr. 517.
In a Medical Source Statement (Mental), Dr. Harris found mild to moderate impairment in
Plaintiff’s ability to interact appropriately with the public, supervisors, and co-workers, and mild
impairment in his ability to carry out simple instructions, make judgments on simple work-related
decisions, understand, remember, and carry out complex instructions, make judgments on complex
work-related decisions, and respond appropriately to usual work situations and to changes in a
routine work setting. Tr. 518-520. Dr. Harris found no other limitations. Tr. 518-520.
On September 11, 2008, Plaintiff saw K. Simon Abraham, M.D., for a consultative physical
examination. Tr. 521-533. At the time, Plaintiff was taking Klonopin and an antidepressant. Tr.
521. Plaintiff reportedly took care of himself and stated he could walk a mile or two. Tr. 521. He
complained of continuous chest pain. Tr. 522. Upon examination, Dr. Abraham noted that Plaintiff
was healthy, fit, strong, and muscular. Tr. 522. He noted that Plaintiff moved with ease and was
comfortable sitting up and lying flat. Tr. 522. Plaintiff’s breath sounds were normal and he
exhibited no hyper-resonance, prolonged expiration, or wheezing. Tr. 523. Range of motion was
normal in Plaintiff’s shoulders, elbows, wrists, hands, hips, knees, ankles, and cervical and lumbar
spine. Tr. 523. Plaintiff showed no signs of neurological deficit or muscle weakness or atrophy. Tr.
524. Gait and coordination were normal. Tr. 524. Plaintiff could stand and walk without assistance
devices, walk on his heels and toes, and squat/arise from a squatting position. Tr. 524. Dr. Abraham
assessed Plaintiff with pain in his anterior chest wall, upper thoracic spine, and left knee, and noted
possible depression. Tr. 525. He specifically stated that Plaintiff was able to perform all of the

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requested activities “without any pain or discomfort” and found nothing “that would preclude
[Plaintiff] from gainful employment.” Tr. 525-526.
In a Medical Source Statement (Physical), Dr. Abraham found that Plaintiff could
occasionally lift/carry 11-20 pounds, sit for three hours at once and two hours total per day, stand
for two hours at once and two hours total per day, and walk for one hour at once and one hour total
per day. Tr. 496-500, 527-533. Dr. Abraham determined Plaintiff could never reach, handle, finger,
feel, or push/pull due to chest pain. Tr. 498, 529. He found that Plaintiff could frequently operate
foot controls with both feet. Tr. 498, 529. Posturally, Dr. Abraham determined Plaintiff could never
stoop, but could occasionally climb stairs, ramps, ladders, or scaffolds, and balance, kneel, crouch,
and crawl. Tr. 499, 530. He found no visual or communicative limitations. Tr. 499, 530.
On April 6, 2009, Plaintiff saw Dr. Smith for a second psychological evaluation. Tr. 535544. Upon examination, Plaintiff was oriented in all spheres. Tr. 535. His memory was impaired,
but his judgment and insight were grossly intact. Tr. 535. Plaintiff’s mood was mildly dysthymic
and his affect was muted and rigid. Tr. 535. His narratives were marginally fluent but informative.
Tr. 535. On the Wechsler Adult Intelligence Scale-Revised, Plaintiff received a verbal IQ of 92, a
performance IQ of 93, and a full-scale IQ of 92. Tr. 536. Dr. Smith assessed Plaintiff with cognitive
dysfunction, non-psychotic, secondary to a general medical condition, traumatic brain injury (per
patient history), and chronic, non-psychogenic pain disorder. Tr. 538. It was Dr. Smith’s opinion
that Plaintiff was totally disabled. Tr. 537. In a Mental RFC Questionnaire, Dr. Smith estimated
Plaintiff’s GAF score at 35-40. Tr. 539. He found that Plaintiff was seriously limited in fifteen
work-related categories and unable to meet competitive standards in ten work-related categories.
Tr. 541-542.

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III.

Applicable Law
The Court’s role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
he is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits his physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform his past relevant work; and (5) if the
claimant cannot perform his past work, the burden of production then shifts to the Commissioner

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to prove that there are other jobs in the national economy that the claimant can perform given his
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
2004).
IV.

Discussion
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at

any point since November 23, 2003, the alleged onset date. Tr. 348. At step two, the ALJ found that
Plaintiff suffered from residuals from a fractured sternum and mood disorders, which were
considered severe impairments under the Act. Tr. 348-349. At step three, he determined Plaintiff
did not have an impairment or combination of impairments that met or medically equaled a listed
impairment. Tr. 349-350. At step four, the ALJ found that Plaintiff had the RFC to lift/carry twenty
pounds occasionally and ten pounds frequently, sit, stand, and walk for six hours in an eight-hour
workday, occasionally reach overhead and frequently reach in all other directions, frequently grasp,
finger, feel, and operate hand and foot controls, and occasionally climb, crawl, balance, kneel,
crouch, and stoop. Tr. 350-355. Additionally, the ALJ found that Plaintiff had moderate restrictions
in his ability to maintain social functioning, maintain concentration, persistence, and pace,
understand, remember, and carry out detailed instructions, respond appropriately to usual work
situations and routine work changes, and interact appropriately with supervisors, the public, and coworkers.

Tr. 350-355.

The ALJ further determined Plaintiff could perform work where

interpersonal contact is incidental to the work performed, complexity of tasks is learned and
performed by rote, with few variables and little judgment, and the supervision required is simple,

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direct, and concrete. Tr. 350-355.
After eliciting vocational expert testimony, the ALJ determined there were light, unskilled
jobs existing in significant numbers in the national economy that Plaintiff could perform, including
representative occupations such as cafeteria attendant, of which there are 50,267 jobs nationally and
200 jobs locally, housekeeper, of which there are 30,529 jobs nationally and 300 jobs locally, and
escort vehicle driver, of which there are 32,960 jobs nationally and 350 jobs locally. Tr. 356, 492495. Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined by
the Act, at any point from November 23, 2003, through December 16, 2009. Tr. 356-357.
On appeal, Plaintiff contends the ALJ erred by: (1) failing to find his diagnoses of organic
brain disorder and cognitive dysfunction to be severe; (2) improperly dismissing Dr. Smith’s
opinion; (3) improperly determining his RFC; and (4) discrediting his subjective complaints. See
Pl.’s Br. 17-29.
A. Plaintiff’s Severe Impairments
Plaintiff contends the ALJ erred at step two of the sequential analysis by failing to find his
cognitive dysfunction/organic brain syndrome to be severe. See Pl.’s Br. 25-27. Step two of the
regulations involves a determination, based on the medical evidence, whether the claimant has an
impairment or combination of impairments that is severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). A severe impairment is one which significantly limits a claimant’s physical or
mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c). The sequential evaluation
process may be terminated at step two only when the claimant's impairment or combination of
impairments would have “no more than a minimal impact on her ability to work.” Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir.2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th

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Cir.1996). Although the Plaintiff has the burden of establishing a severe impairment or impairments,
the burden at this stage is not great. Caviness, 250 F.3d at 605.
The Court finds no error in the ALJ’s determination that Plaintiff’s cognitive
dysfunction/organic brain syndrome is non-severe. The ALJ provided explicit reasons for giving
little weight to Dr. Vann Smith’s mental evaluation, namely that Dr. Smith’s opinion was
inconsistent both internally and as compared with the medical evidence as a whole. Tr. 354.
Additionally, it appears that Dr. Smith relied heavily and unquestioningly on the Plaintiff’s
subjective report of his symptoms rather than objective medical reports. Specifically, Dr. Smith
determined Plaintiff suffered from “significant closed head trauma” as a result of his four wheeler
accident, despite documented evidence that Plaintiff denied loss of consciousness and only sustained
lacerations to his cheek and eye. Tr. 121, 535. Moreover, Dr. Smith found that Plaintiff had a
history of “steadily worsening neurocognitive/emotive symptoms.” Tr. 535. However, in the five
years that elapsed between Dr. Smith’s first and second evaluations, Plaintiff’s IQ scores remained
stable and demonstrated average intelligence. Tr. 219, 539. Finally, the ALJ noted that Plaintiff had
never before sought medical treatment from a neuropsychologist, and surmised that this was an
attempt to generate evidence for the current appeal. Tr. 354; see Page v. Astrue, 484 F.3d 1040,
1043 -44 (8th Cir. 2007); Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995) (doctor’s visit linked
primarily to obtaining benefits rather than medical treatment)). These are all valid reasons to attach
less significance to Dr. Smith’s opinion. As such, the Court finds no error in the ALJ’s severity
determination.
B. Dr. Smith’s Opinion
Plaintiff next asserts that the ALJ demonstrated bias in weighing and dismissing Dr. Smith’s
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opinion. See Pl.’s Br. 22-25. This Court disagrees. First, Dr. Smith only evaluated Plaintiff twice
during a span of five years. See Holmstrom v. Massanari, 270 F.3d 715, 720-721 (8th Cir. 2001)
(ALJ properly discounted treating physicians’ opinions as to claimant’s RFC, in part because they
were based on a relatively short-term treatment relationship). Additionally, as previously discussed,
the ALJ properly determined that Dr. Smith’s findings were internally inconsistent as well as
inconsistent with the medical evidence as a whole. Tr. 354; Plaintiff had never before sought
treatment for or exhibited symptoms consistent with cognitive dysfunction. See Kirby v. Astrue, 500
F.3d 705, 708-09 (8th Cir. 2007). Moreover, it appears that Plaintiff saw Dr. Smith to bolster his
claim for disability benefits rather than to obtain medical treatment. See Shannon, 54 F.3d at 486.
The ALJ properly took these considerations into account when determining what weight to give Dr.
Smith’s opinion.
The court also dismisses Plaintiff’s claim of unfair bias or prejudice exhibited by the ALJ
against Dr. Smith. In considering Dr. Smith’s opinion, the ALJ specifically stated, “such evidence
is certainly legitimate and deserves due consideration.” Tr. 354-355. Additionally, Plaintiff has
offered no specific evidence of bias. See Kittler v. Astrue, 231 Fed. Appx. 524, 525 (8th Cir. 2007)
(citing Rollins v. Massanari, 261 F.3d 853, 857-58 (8th Cir. 2001) (plaintiff did not overcome
presumption that ALJ was unbiased)). Accordingly, we reject Plaintiff’s conclusory allegation of
prejudice.
C. Plaintiff’s RFC
Plaintiff argues that the ALJ erred in his RFC assessment. Pl.’s Br. 17-19. At the fourth step
of the evaluation, a disability claimant has the burden of establishing his RFC. Eichelberger, 390
F.3d at 591; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A claimant’s RFC is the
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most he can do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ determines a
claimant’s RFC based on “all relevant evidence, including medical records, observations of treating
physicians and others, and the claimant’s own descriptions of his or her limitations.” Masterson, 363
F.3d at 737. The Eighth Circuit has stated that “a claimant’s residual functional capacity is a medical
question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus, although the ALJ bears the
primary responsibility for determining a claimant’s RFC, there must be “some medical evidence”
to support the ALJ’s determination. Eichelberger, 390 F.3d at 591; Dykes v. Apfel, 223 F.3d 865,
867 (8th Cir 2000).
(1) Physical Limitations
Substantial evidence supports the ALJ’s RFC determination. Although Plaintiff experienced
complications following his four wheeler accident, the objective medical evidence suggests that
Plaintiff’s sternal fracture improved with treatment and medication. See Schultz v. Astrue, 479 F.3d
979, 983 (8th Cir. 2007) (an impairment that can be controlled by treatment is not considered
disabling). By February 20, 2004, Plaintiff’s breathing and chest pain had improved. Tr. 203. An
ECG yielded normal results. Tr. 205. An MRI of Plaintiff’s chest dated May 2004 revealed no
apparent fractures, subluxations, edema, destructive lesions, and no masses or hematomas. Tr. 272.
In July 2004, a physical examination revealed no deformity, stepoff, or clicking. Tr. 253. Although
Plaintiff claimed he could “pop his ribs,” Dr. Gocio was unable to reproduce the sound. Tr. 253.
Tomography revealed no fractures, but some calcification and changes in the costal cartilages. Tr.
213, 258. A bone scan revealed increased activity involving the sternomanubrial joint and the mid
and lower portion of the sternum. Tr. 211-212, 259. Dr. Gocio concluded that Plaintiff’s pain was
likely related to disrupted cartilage and stated he could offer nothing surgical to alleviate the

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problem. Tr. 211. He recommended continued treatment with NSAIDs. Tr. 211. At MHCC,
Plaintiff was prescribed Ultram and Indocin for pain. Tr. 229. On December 7, 2004, Dr. Wilbur
noted that he did believe Plaintiff was in pain. Tr. 228. However, on February 3, 2005, Dr.
Hagaman noted that Plaintiff did not “appear to be in a whole lot of discomfort.” Tr. 239.
Consultative evaluations also do not support the level of pain Plaintiff alleges. Dr. Hodges
noted that Plaintiff’s upper extremity muscle mass was greater than “would be anticipated in an
individual who had been out of work or unable to work for a year.” Tr. 275. Examination of
Plaintiff’s thorax revealed point tenderness at the costochondral margins of the sternum. Tr. 275.
No pain was elicited on lateral and posterior palpation of the chest wall, but tenderness was noted
upon palpation of the sternum. Tr. 275. A small amount of step-off was noted in the distal portion
of the sternum and the xiphoid process was slightly elevated. Tr. 275. No crepitus or immobility
of the sternum was noted, and Plaintiff was unable to make his ribs “pop and crack.” Tr. 275.
Similarly to Dr. Hodges, Dr. Abraham noted that Plaintiff appeared healthy, fit, strong, and
muscular. Tr. 522. He noted that Plaintiff moved with ease and was comfortable sitting up and lying
flat. Tr. 522. Plaintiff’s breath sounds were normal and he exhibited no hyper-resonance, prolonged
expiration, or wheezing. Tr. 523. Range of motion was normal in Plaintiff’s shoulders, elbows,
wrists, hands, hips, knees, ankles, and cervical and lumbar spine. Tr. 523. Plaintiff showed no signs
of neurological deficit or muscle weakness or atrophy. Tr. 524. Gait and coordination were normal.
Tr. 524. Plaintiff could stand and walk without assistance devices, walk on his heels and toes, and
squat/arise from a squatting position. Tr. 524. Dr. Abraham specifically stated that Plaintiff was
able to perform all of the requested activities “without any pain or discomfort” and found nothing
“that would preclude [Plaintiff] from gainful employment.” Tr. 525-526.

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Plaintiff draws the Court’s attention to Dr. Gocio’s and Dr. Wilbur’s notes that he
experienced legitimate pain. Tr. 211, 227. This issue is not in dispute. Plaintiff undoubtedly
experiences pain. However, his physical examinations, medical records, and lack of ongoing
treatment are simply inconsistent with the amount of pain alleged. Furthermore, although Dr. Gaston
opined in his December 2003 letter that Plaintiff’s prognosis for working within the next year was
poor, he did not treat Plaintiff after January 5, 2004, and was not in the best position to judge
Plaintiff’s recovery. For these reasons, the Court finds no error in the ALJ’s physical RFC
determination.
(2) Mental Limitations
Substantial evidence similarly supports the ALJ’s mental findings. For reasons already
thoroughly discussed, the ALJ properly discredited Dr. Smith’s opinion. Moreover, although
Plaintiff was prescribed Lexapro, he did not report psychological symptoms until June 24, 2005, over
a year and a half after his alleged onset date, and sought very little, if any, treatment during the
relevant time period. Tr. 241. Plaintiff’s lack of mental health treatment undermines his overall
credibility. See Kirby v. Astrue, 500 F.3d 705, 708-09 (8th Cir. 2007) (claimant never sought formal
treatment by a psychiatrist, psychologist, or other mental health care professional). For these
reasons, the Court finds no error in the ALJ’s mental RFC determination. Accordingly, we find that
the ALJ’s RFC assessment properly reflects Plaintiff’s physical and mental limitations.
D. Subjective Complaints
Lastly, Plaintiff contends the ALJ improperly dismissed his subjective allegations of pain.
See Pl.’s Br. 19-22. When evaluating a claimant’s subjective allegations, the ALJ must consider all
evidence relating to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of
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the pain; (3) any precipitating and aggravating factors; (4) the dosage, effectiveness and side effects
of medication; and (5) any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). The ALJ “may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them.” Medhaug v. Astrue, 578 F.3d 805, 816
(8th Cir. 2009) (quoting Goff, 421 F.3d at 792). However, subjective complaints may be discounted
if there are inconsistencies in the medical evidence as a whole. Id. A court “will not disturb the
decision of an ALJ who considers, but for good cause expressly discredits, a claimant’s complaints
of disabling pain.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (quoting Goff, 421 F.3d
at 792).
Contrary to Plaintiff’s assertion, the ALJ dismissed his subjective complaints for legally
sufficient reasons. The ALJ cited Plaintiff’s lack of ongoing medical treatment, failure to take
prescription pain medication, and the lack of objective medical corroboration as evidence that his
limitations were not of disabling severity. Tr. 353-354; Davis v. Barnhart, 197 Fed. Appx. 521, 522
(8th Cir. 2006) (ALJ properly considered medical records, lack of treatment, and failure to take
prescription pain medication when discounting her subjective complaints); Hutton v. Apfel, 175 F.3d
651, 655 (8th Cir. 1999) (absence of objective medical evidence to support claimant’s complaints).
Other than appearing for scheduled consultative evaluations, Plaintiff did not seek any medical
treatment after June 2005. Tr. 241. Additionally, despite Plaintiff’s alleged level of pain, he testified
that he was no longer taking any prescription or over-the-counter pain medications. Tr. 412; Novotny
v. Chater, 72 F.3d 669, 671 (8th Cir. 1995) (claimant failed to seek regular or sustained medical
treatment and was not taking prescription pain medication at the time of the administrative hearing).
Finally, although Plaintiff testified that he could not afford the cost of treatment or medication, the

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evidence shows that he sought and received treatment at MHCC and Ozark Counseling Services,
both of which are known for providing treatment to the uninsured.1 Tr. 403; see Clark v. Shalala,
28 F.3d 828, 831 n. 4 (8th Cir. 1994) (ALJ properly discounted claimant’s subjective complaints
when he failed to provide evidence of refusal of services due to lack of financial resources).
It is well-settled that an ALJ need not explicitly discuss each Polaski factor; it is “sufficient
if he acknowledges and considers those factors before discounting a claimant’s subjective
complaints.” Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009) (quoting Strongson v. Barnhart,
361 F.3d 1066, 1072 (8th Cir. 2004)). Here, the ALJ cited the proper standard, considered the
factors in conjunction with Plaintiff’s testimony, and then properly discounted Plaintiff’s subjective
complaints. Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (“we defer to an ALJ’s credibility
determinations if they are supported by valid reasons and substantial evidence”). For these reasons,
substantial evidence supports the ALJ’s decision to discredit Plaintiff’s subjective complaints.
V.

Conclusion
Having carefully reviewed the record, the undersigned finds that substantial evidence

supports the ALJ's determinations at each step of the disability evaluation process, and thus the
decision should be affirmed. Accordingly, Plaintiff’s complaint should be dismissed with prejudice.
IT IS SO ORDERED this 8th day of June 2011.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE

1

Health Resources of Arkansas acquired Ozark Counseling Services and all associated client records. Tr.
506. As a result, Plaintiff’s counseling records could not be located. Tr. 506.

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