Brown v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 30, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
KRISTEN M. BROWN
Civil No. 10-3111
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Kristen Brown, 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 supplemental insurance benefits (“SSI”) under Title 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 application for SSI on May 23, 2006, alleging an onset date of April 17,
1999, due to scoliosis status post fusion surgery, right ankle pain, headaches, asthma, obesity, cognitive
disorder, and mood disorder. Tr. 71-72, 92-96, 106-111. Her applications were initially denied and that
denial was upheld upon reconsideration. Tr. 24-27, 30-32. Plaintiff then made a request for a hearing
by an Administrative Law Judge (“ALJ”). An administrative hearing was held July 3, 2008. Tr. 299351. Plaintiff was present and represented by counsel.
At this time, plaintiff was 25 years of age and possessed a tenth grade education. Tr. 18, 56,
304-305, 310. She had no past relevant work (“PRW”) experience. Tr. 99-104.
On October 3, 2008, the ALJ found that plaintiff’s scoliosis, obesity, cognitive disorder, and
mood disorder were severe, but did not meet or medically equal one of the listed impairments in
Appendix 1, Subpart P, Regulation No. 4. Tr. 14-15. After partially discrediting plaintiff’s subjective
complaints, the ALJ determined that plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work, except that she could lift and carry 10 pounds frequently and 20 pounds
occasionally; sit for 4 hours during and 8-hour workday; and, stand and walk for 2 hours during and 8hour workday. The ALJ also found that Plaintiff would need to alternate between sitting, standing, and
walking; could not climb ladders, ropes, or scaffolds; could only occasionally climb ramps/stairs, bend,
stoop, crouch, crawl, kneel, and balance; could not perform work around unprotected heights or
dangerous equipment such as inherently life threatening moving machinery; and, could only perform wok
involving simple job instructions, requiring little judgment, involving routine and repetitive tasks, and
necessitating only superficial contact with the public and co-workers. Tr. 56-60. With the assistance
of a vocational expert, the ALJ found plaintiff could perform work as an inspector/sorter and bench
assembly worker. Tr. 18-19.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on October 6, 2010. Tr. 3-6. 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. 9, 10.
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.
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 claim; (2) whether the claimant has a severe physical and/or mental impairment or
combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings;
(4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the
claimant is able to perform other work in the national economy given his age, education, and experience.
See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the final stage is reached does the fact finder consider
the plaintiff’s age, education, and work experience in light of his or her residual functional capacity. See
McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
On April 22, 2005, Plaintiff underwent a general physical exam. Tr. 121-127. She complained
of lower back pain, chronic headaches, visual disturbances, and shortness of breath. Plaintiff indicated
that she had undergone fusion surgery for scoliosis at age 11 and currently smoked cigarettes. An
examination revealed an obese female with normal breath sounds, a normal range of motion in all areas,
some evidence of muscle spasm, and scoliosis. She walked well and had a normal gait, could walk on
her heel/toes, and could squat and arise from a squatting position without difficulty. No evidence of
psychosis was noted, and Plaintiff was oriented in all spheres. The doctor diagnosed her with lower back
pain with a history of surgery for scoliosis, questionable migraine headaches, and questionable shortness
of breath. No limitations were noted. Tr. 121-127.
On April 11, 2006, Dr. Hassan Albataineh conducted a general physical exam of Plaintiff. Tr.
129-135. She reported a history of scoliosis with continued lower back pain status post fusion surgery
and right ankle pain. Plaintiff also complained of dyspnea with moderate exertion, which she blamed
on the fact that doctors had to collapse one of her lungs during the scoliosis fusion surgery. Dr.
Albataineh noted that Plaintiff could not walk two blocks without experiencing dyspnea.
examination revealed some intermittent claudication, but a normal range of motion in all areas, a
negative straight leg raise test, no muscle weakness, and no atrophy. Dr. Albataineh diagnosed Plaintiff
with scoliosis, lower back pain, right ankle pain, and dyspnea with moderate exertion. He concluded that
she would have mild limitations with regard to walking, standing, lifting, and carrying. Tr. 129-135.
On April 25, 2006, Plaintiff sought treatment for a sprained ankle. Tr. 285-287. X-rays of her
right ankle revealed no evidence of a fracture or dislocation. Tr. 285-287.
On December 6, 2006, Plaintiff sought emergency treatment for a migraine headache. Tr. 240242. She stated that Hydrocodone was not working. A physical examination was normal. Plaintiff was
administered Reglan and Benadryl via IV, after which she reported improvement of her symptoms.
Plaintiff was advised to follow-up with her treating physician. Tr. 240-242.
On December 28, 2006, Dr. Vann Smith performed a neuropsychological assessment of Plaintiff.
Tr. 150-159. She reported a history of asthma, migraine headaches, and closed head injuries. Initially,
Dr. Smith noted slowly progressive neurocognitive symptoms including impaired recall/declarative
memory, impaired attention to sequential detail, impaired concentration, word finding difficulty,
affective lability, sleep pattern disturbance, and dysexecutivism. However, he found her to be alert,
cooperative, soft spoken, and oriented on all spheres. Her memory, judgment, and insight were intact,
and her affect was full ranging and flexible. Further, Plaintiff’s mood was mildly anxious with no
evidence or complaints of hallucinations, delusions, or suicidal or homicidal ideations. Physically, her
gait was slow and hesitant and her posture was guarded with occasional position shifts. Testing revealed
a full scale IQ of 87. Dr. Smith diagnosed Plaintiff with mild to moderate cognitive dysfunction
secondary to the closed head injuries she suffered at the hands of her younger brother, and mood
disorder. He assessed her with a global assessment of functioning score of 50, and noted her prognosis
to be fair. It was his opinion that Plaintiff was disabled.
Dr. Smith also completed an RFC assessment. He indicated that Plaintiff would be unable to
compete in the following areas: remember work-like procedures; maintain attention for two hour
segments; maintain regular attendance and be punctual within customary and usually strict tolerances;
sustain an ordinary routine without special supervision; complete a normal workday and workweek
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; understand, remember, and carry out detailed instructions; set realistic goals or
make plans independently of others; and, deal with the stress of semiskilled or skilled work. Further,
Dr. Smith opined that she would be seriously limited with regard to carrying out very short simple
instructions; working in coordination with or proximity to others without being unduly distracted;
responding appropriately to changes in a routine work setting; dealing with normal work stress; being
aware of normal hazards and taking appropriate precautions; traveling in unfamiliar places; and using
public transportation. He also indicated that she would miss more than four days of work per month.
On April 2, 2007, Plaintiff complained of acute right ankle pain. Tr. 236-239. She was tender
to palpation, but had good strength and range of motion with intact sensation. An x-ray revealed soft
tissue swelling, but no fracture. The doctor prescribed crutches, weight bearing as tolerated, ice,
elevation, and Ultram. Tr. 236-239.
On October 5, 2007, Plaintiff presented in the emergency room following an automobile
accident. Tr. 207-211. She complained of lower back pain. X-rays revealed scoliosis of the lumbar
spine and degenerative changes at the L4 level. An old clay shoveler’s fracture was also seen on the
distal portion of the spinous process of the C7. Plaintiff was diagnosed with back strain and scoliosis.
She was prescribed Vicodin and Naproxen. Tr. 207-211.
On November 14, 2007, Plaintiff complained of back and abdominal pain. Tr. 204-206. She
had experienced a miscarriage in June and reported pain ever since. Plaintiff had not seen her
gynecologist because she no longer had insurance and could not afford to pay for an appointment. An
examination revealed mild suprapubic tenderness without rebound or guarding. The doctor determined
that her pain was likely related to ovarian cysts that had been accentuated since her miscarriage. Plaintiff
was administered Toradol and Norflex injections, as well as a prescription for Ultram. Tr. 204-206.
On April 9, 2008, Plaintiff was treated in the emergency room for lower back and abdominal
pain, as well as left ear pain. Tr. 199-200. She thought she had a urinary tract infection. Testing
revealed that she was four weeks pregnant. Plaintiff was diagnosed with musculoskeletal pain and
otalgia. Tr. 199-200. In May 2008, Plaintiff had a miscarriage. Tr. 175-184.
On June 2, 2008, Dr. Ted Honghiran completed an orthopedic evaluation of Plaintiff. Tr. 160162. He noted her history of scoliosis of the thoracolumbar spine and spinal fusion at age 11, as well
as her continued chronic lower back pain. An examination revealed a full range of motion in the
lumbosacral spine and a negative straight leg raise on both sides. She did exhibit an obvious hump in
her back with forward flexion on the right, due to thoracolumbar scoliosis. Dr. Honghiran indicated that
it was understandable that Plaintiff would have some type of back pain for the rest of her life. Due to
her limited education, he did not feel she would be able to get a job that did not require any lifting,
bending, or stooping. He then completed an RFC assessment concluding that Plaintiff could frequently
lift up to 10 pounds and occasionally lift up to 50 pounds, but never left more. Further, she could sit,
stand, and walk consecutively for one hour at a time; sit for a total of 4 hours per 8-hour day; stand/walk
for a total of 2 hours per 8-hour workday; occasionally push/pull with both hands, climb, stoop, kneel,
crouch, crawl, work near moving mechanical parts, and operate a motor vehicle; frequently operate foot
controls with both feet; and, never work near unprotected heights. However, he noted that she could
shop, travel with a companion without assistance, walk a block at a time at a reasonable pace on a rough
or uneven surface, climb a few steps at a reasonable pace with the use of a single hand rail, and care for
her personal hygiene. Tr. 160-162.
On June 16, 2008, Plaintiff presented in the emergency room with complaints of nausea,
vomiting, mild rectal pain, a productive cough, wheezing, and fever. Tr. 169-174. An examination
revealed expiratory wheezing and mildly decreased breath sounds bilaterally. A chest x-ray showed
interstitial change in the chest, but nothing acute. Xoponex was administered with fair resolution of the
wheezing. Plaintiff was diagnosed with brochitis, constipation, and post-tussive emesis (vomiting caused
by violent coughing). She was prescribed Xoponex and Atrovent MDI treatments, Zithromax, a Fleet
enema, and Magnesium Citrate. Tr. 169-174.
Plaintiff contends that the ALJ erred by improperly determining that Plaintiff was not credible,
failing to properly consider Dr. Honghiran’s opinion, and relying on the testimony of a vocational expert
that was contradicted by the Dictionary of Occupational Titles. We will begin our analysis with an
evaluation of Plaintiff subjective complaints and the medical evidence of record.
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).
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).
At the onset, Plaintiff contends that the ALJ failed to apply the Polaski factors and provide
specific reasons for discrediting Plaintiff’s testimony. Although the ALJ never expressly cited Polaski
(which is our preferred practice), the ALJ cited and conducted an analysis pursuant to 20 C.F.R. §
416.929, which largely mirror the Polaski factors. See Randolph v. Barnhart, 386 F.3d 835, 842 (8th
Cir.2004). Specifically, the ALJ found that Plaintiff did not take prescription pain medication in spite
of her alleged severe pain, she remained capable of being the primary care giver for her four year old
daughter, her daily activities were relatively normal, she continued to smoke in spite of reported financial
difficulties in obtaining medication and treatment, and the objective medical evidence failed to support
her subjective complaints. We conclude the ALJ adequately, if not expressly, applied the Polaski factors
and discounted Plaintiff’s subjective complaints of pain. See, e.g., Goff, 421 F.3d at 791-92.
The record reveals that Plaintiff had been diagnosed with scoliosis and undergone fusion surgery
at age 11. In spite of the relative success of the surgery, she had continued to experience at least some
degree of pain and discomfort. However, physical exams conducted during the relevant time period were
essentially unremarkable. 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). In 2005, she had a normal range of
motion in all areas, walked well, had a normal gait, could walk on her heel/toes, and could squat and
arise from a squatting position without difficulty. In 2006, Plaintiff continued to exhibit a normal range
of motion in all areas, a negative straight leg raise test, no muscle weakness, and no atrophy. Dr.
Albataineh noted that she would have only “mild” limitations with regard to walking, standing, lifting
and carrying. Tr. 129-135. X-rays conducted in 1007, following an automobile accident, revealed
scoliosis of the lumbar spine with degenerative changes at the L4 level. An old clay shoveler’s fracture
was also seen on the distal portion of the spinous process of the C7. Tr. 207-211. Then, in 2008, Dr.
Honghiran’s evaluation again revealed a full range of motion in the lumbosacral spine and a negative
straight leg raise. A hump was noted with forward flexion, due to the scoliosis. Dr. Honghiran indicated
that Plaintiff would be limited with regard to sitting, standing, walking, pushing/pulling, climbing,
stooping, kneeling, crouching, crawling, working near moving mechanical parts, operating motor
vehicles, and working near unprotected heights. Tr. 160-162. However, aside from his opinion that her
limited education and physical limitations would make it difficult for her obtain employment, there is
no evidence to indicate that Plaintiff was unable to perform work-related tasks. See Raney v. Barnhart,
396 F.3d 1007, 1010 (8th Cir. 2005) (none of the claimant’s treating physicians opined the claimant was
so impaired or disabled that the claimant could not work at any job).
The evidence also makes clear that Plaintiff was not taking any prescription pain medication.
Nelson v. Sullivan, 966 F.2d 363, 367 (8th Cir.1992) (the mere use of nonprescription pain medication
is inconsistent with complaints of disabling pain). Instead, she took over-the-counter medications to
treat her pain. Plaintiff contends that she was unable to obtain prescription medications due to a lack
of insurance and financial constraints. We note that Plaintiff did not seek treatment for her condition
from a treating physician, rather went to the emergency room, which she also blamed on her lack of
insurance. However, the record is devoid of any evidence showing that Plaintiff had been denied access
to medical treatment or prescription pain medications on account of her financial constraints. Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (holding that the ALJ correctly discounted the plaintiff’s
subjective complaints when there was no evidence that the plaintiff was ever denied medical treatment
due to financial reasons). In fact, there is no evidence that she ever even sought out indigent or reduced
rate medical treatment or medication. And, Plaintiff elected to continue smoking cigarettes in lieu of
using that money to help obtain medication and treatment. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir.
1999). Accordingly, we can not say that her failure to obtain medication is excused by her financial
Plaintiff also complained of right ankle pain. The record reveals that she sprained this ankle on
at least two occasions during the relevant time period. However, x-rays repeatedly revealed no evidence
of fracture or dislocation. Further, none of her physical exams revealed any range of motion limitations
in the ankle. 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). Therefore, while we do believe it is likely that she
continued to experience some degree of pain and discomfort in the ankle once the sprains had healed,
we do not find this condition to be disabling.
Plaintiff was also mildly obese. Although there is some evidence in the record to show that
plaintiff was obese, we can find no evidence to indicate that plaintiff’s obesity prevented her from
performing work-related activities. None of her treating doctors suggested her weight imposed any
additional work-related limitations, and she did not testify that her weight imposed additional
restrictions. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003).
We note that a mere diagnosis is not sufficient to prove disability, absent some evidence to
establish a functional loss resulting from that diagnosis. See Trenary v. Bowen, 898F.2d 1361, 1364 (8th
Cir. 1990). Therefore, although it is clear that plaintiff suffers from some degree of impairment related
to her scoliosis that is likely exacerbated to some degree by her obesity, she has not established that she
is unable to engage in any and all gainful activity. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
(holding that mere fact that working may cause pain or discomfort does not mandate a finding of
disability); Woolf v. Shalala, 3 F.3d at 1213 (holding that, although plaintiff did have degenerative
disease of the lumbar spine, the evidence did not support a finding of disabled). Neither the medical
evidence nor the reports concerning his daily activities supports plaintiff’s contention of total disability.
Plaintiff was also treated for asthma and a migraine headache on one occasion during the
relevant time period. The ALJ did not find this impairment to be severe. A “severe impairment is
defined as one which ‘significantly limits [the claimant’s] physical or mental ability to do basic work
activities.’” See Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. §
Records indicate that her asthma was responsive to treatment. Brown v. Barnhart, 390 F.3d 535,
540 (8th Cir. 2004) (stating an impairment that can be controlled by treatment or medication is not
considered disabling). Tr. 169-174. No pulmonary function tests were ever performed to evaluate her
lung function, so it appears that her condition was not severe enough to warrant such testing. And,
Plaintiff admitted to smoking at least one package of cigarettes every three days in spite of her asthmatic
condition. Research makes clear that smoking actually exacerbates asthma. Accordingly, we do not find
her asthma to be a severe impairment. See id.
Like her asthma, Plaintiff’s headache was responsive to medication. Brown, 390 F.3d at 540.
And, given the fact that she was treated for only one migraine between 1999 and 2008, we do not believe
that her headaches constituted a severe impairment. See Pelkey, 433 F.3d at 577.
Although Plaintiff contends that she is disabled due to a mood disorder, namely depression, and
a cognitive disorder, we can find no evidence that she sought out treatment for these conditions during
the relevant time period. She did not complain of symptoms associated with these disorders, was never
prescribed antidepressants or anti-anxiety medications by any of the doctors treating her, and did not seek
out mental health treatment. 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). Two
general physical exams revealed no evidence of psychosis and orientation in all spheres. No depression
or anxiety was noted. Multiple emergency room visits also failed to reveal any complaints of mental or
emotional distress. So, aside from Dr. Smith’s assessment, there is no evidence to indicate Plaintiff was
suffering from any type of a mood or cognitive disorder. In fact, Plaintiff remained able to care for her
four year old daughter while her husband was away at work, reported no difficulty getting along with
others, stated that she talked on the phone regularly, and reported taking her children to play with her
friends’ children three to four times per week. Tr. 84-91. We find these activities to be incompatible
with a claim of disability.
Plaintiff does contend that she was unable to obtain mental health treatment due to her lack of
insurance and financial inability to pay for treatment. However, as addressed above, we do not find this
to be a valid excuse, as she did not even attempt to obtain treatment. See Goff, 421 F.3d at 790.
Plaintiff mother testified on her behalf. We note, however, that her testimony was primarily
cumulative of Plaintiff’s testimony. Tr. 326-329. She was able to provide little other than to corroborate
Plaintiff allegations that she experienced difficulty standing and bending. It is clear that the ALJ
properly considered this testimony but found it unpersuasive. This determination was within the ALJ's
province. See Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir. 1995); Ownbey v. Shalala, 5 F.3d 342, 345
(8th Cir. 1993).
Activities of Daily Living:
Plaintiff’s own reports concerning her daily activities also undermine her claim of disability.
On July 29, 2006, Plaintiff completed an adult function report, on which she reported that her daily
activities included making breakfast for her children, cleaning house, taking her children out to play,
making lunch, taking the children swimming, cooking dinner, bathing her children, and getting her
children ready for bed. Tr. 84-91. She also reported the ability to care for the family cats, prepare meals,
do laundry, do the dishes, vacuum, walk, drive a car, ride in a car, go out alone, shop for groceries and
clothing, pay bills, count change, handle a savings account, use a checkbook/money orders, read, watch
television, talk on the phone, and take the children to play with friends three to four times per week. 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). Clearly, these are not the daily
activities one would expect a disabled person to be able to perform.
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 doctor. On August 18, 2006, Dr. Alice
Davidson completed a physical RFC assessment of Plaintiff. Tr. 138-145. After reviewing Plaintiff’s
medical records, she concluded Plaintiff could perform medium level work involving frequent climbing,
balancing, kneeling, and crawling and occasional stooping and crouching. This assessment was affirmed
on December 21, 2006, by Dr. Bill Payne. Tr. 146-148.
We also note Dr. Honghiran’s assessment that Plaintiff could sit, stand, and walk consecutively
for one hour at a time; sit for a total of 4 hours per 8-hour day; stand/walk for a total of 2 hours each per
8-hour workday; frequently lift up to 10 pounds and occasionally lift up to 50 pounds, but never lift
more; occasionally push/pull with both hands, climb, stoop, kneel, crouch, crawl, work near moving
mechanical parts, and operate a motor vehicle; frequently operate foot controls with both feet; and, never
work near unprotected heights. Plaintiff contends that his statement regarding her limited education and
his belief that she would not be able to get a job that did not require any lifting, bending, or stooping
shows that he found her to be disabled. However, we believe he was simply stating his belief that there
would not be any jobs available for a person with her limitations.1 His assessment of her abilities makes
clear that she was able to perform some work within the sedentary range. Accordingly, we can not say
that the ALJ failed to properly consider Dr. Honghiran’s assessment.
From a mental perspective, we again note that Plaintiff sought out no mental health treatment
during the relevant time period. We can also find no evidence that she was ever even prescribed
medication to treat depression, a mood disorder, or a cognitive disorder. The only evidence that Plaintiff
was suffering from a mental disorder was presented by Dr. Smith, who examined Plaintiff on only one
occasion. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (holding that the opinion of a
consulting physician who examined the plaintiff once or not at all does not generally constitute
substantial evidence). Based on her subjective reports, he then diagnosed her with cognitive disorder
and mood disorder and concluded that she was disabled. Had Plaintiff been as impaired as alleged by
Dr. Smith, we do not believe she would have been able to care for her four year old daughter and perform
many of the activities she reported performing. We also believe she would have sought out treatment
for her symptoms, as the degree of impairment alleged by Dr. Smith would have interfered with her
ability to perform activities of daily living and care for her family. The record contains no such
evidence. In accordance, we find that the ALJ’s RFC assessment is supported by substantial evidence.
We find that the question of availability of jobs for a person with certain limitations is a question more
appropriately addressed to a vocation expert. Vocational experts are well versed in the various fields of
employment, the requirements of these jobs, and the availability of positions for persons with specified
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 an inspector, sorter, and weigher. Tr. 326-329. Plaintiff
contends that the ALJ’s reliance on the expert’s testimony is misplaced because the expert stated that
he was identifying sedentary jobs that an individual with Plaintiff’s RFC could perform. Plaintiff points
out that her RFC makes clear that she could not sit the requisite 6 hours per day that sedentary work
entails. A review of the hearing testimony reveals that the ALJ advised the expert that Plaintiff would
only be able to sit for four hours per day and she would need a job with a sit/stand/walk option. In
response, the expert identified the positions of inspector, sorter, and weigher, stating there were an
estimated 51,000 of these position in the national economy that allowed for a “sit/stand” option.
Plaintiff argues that a “sit/stand option” would not adequately meet her needs. We note that the
ALJ indicated that Plaintiff would need a “sit/stand/walk” option. She then explained that the walking
requirement did not include walking away from the work area. The walking component simply involved
being able to take one or two steps away from the work station so that Plaintiff would not be required
to stand perfectly still. Tr. 331. Given the ALJ’s description of the walking component, we find that
a “sit/stand option”, as that term is traditionally defined, would adequately meet Plaintiff’s needs.
The specific examples of occupations the vocational expert identified also do not require
stooping, crouching, climbing, balancing, kneeling, or crawling. Tr. 331-333. See DICTIONARY OF
OCCUPATIONAL TITLES § 521.687-086, 713.687-018, at www.westlaw.com. Further, the vocational
expert indicated that he had decreased the total number of positions available by 25% to allow for the
decrease in the number of positions available due to Plaintiff’s need for a sit/stand option. Therefore,
we find that any conflict with the Dictionary of Occupational Titles was adequately explained by the
expert. Accordingly, because the hypothetical questions posed to the expert contained the impairments
the ALJ found to be supported by the record, and any conflicts with the Dictionary of Occupational
Titles were adequately explained, 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 30th day of January 2012.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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