Jedrzejak v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 2, 2013. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CHRISTOPHER G. JEDRZEJAK
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Christopher G. Jedrzejak, brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). 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).
Plaintiff filed his applications for DIB and SSI on October 14, 2008, alleging disability
since August 1, 2006,2 due to “Bad lungs, right leg problems.” (Tr. 9, 164-173, 204). An
administrative hearing was held on March 15, 2010, at which Plaintiff appeared with counsel and
testified. (Tr. 40-72).
By written decision dated November 9, 2010, the ALJ found that during the relevant time
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Plaintiff amended his onset date at the hearing. (Tr. 59).
period, Plaintiff had an impairment or combination of impairments that were severe - residual
effects of comminuted3 right tibia fracture status post open reduction internal fixation and
COPD/asthma. (Tr. 11). However, after reviewing all of the evidence presented, the ALJ
determined that Plaintiff’s impairments did not meet or equal the level of severity of any
impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No.
4. (Tr. 13-14). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). The claimant can only occasionally climb ramps and stairs,
and can never climb scaffolds, ladders or ropes. The claimant cannot
kneel, crouch, crawl or operate foot controls with his right lower
extremity. The claimant must avoid concentrated exposure to cold,
wetness, fumes, odors, gases, and poor ventilation. The claimant must
avoid hazards, e.g. unprotected heights and dangerous machinery, and
cannot drive as part of work.
(Tr. 14). With the help of a vocational expert (VE), the ALJ determined Plaintiff was not
capable of performing his past relevant work, but that there were other jobs Plaintiff would able
to perform, such as production work - account clerk, e.g. charge account clerk; phone clerk - call
out operator; and cutter and paster of press clippings. (Tr. 16-17). Plaintiff then requested a
review of the hearing decision by the Appeals Council, which denied the request on February 21,
2011. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 9). Both parties have filed appeal briefs,
and the case is now ready for decision. (Docs. 12, 13).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs, and are repeated here only to the extent necessary.
Comminuted - Broken into several pieces; denoting especially a fractured bone. Stedman’s Medical Dictionary
415 (28th ed. 2006).
This Court’s role is to determine whether the Commissioner’s findings are supported
by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th
Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a reasonable
mind would find it adequate to support the Commissioner’s decision. The ALJ’s decision must
be affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314
F. 3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§423(d)(3),
1382(3)(D). A Plaintiff must show that his disability, not simply his 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 had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) The ALJ erred in dismissing the report
of Dr. Vann Smith; and 2) The ALJ’s decision is not supported by substantial evidence. (Doc.
Dr. Smith’s Opinion:
Plaintiff argues that Dr. Smith’s report was dismissed and the ALJ determined Plaintiff
not to have a severe mental impairment without any basis, and that the ALJ should have ordered
that Plaintiff undergo a mental health examination.
In this case, the ALJ correctly noted that there were no significant objective medical
findings in the record which existed in order for Plaintiff’s mental problems to be considered
severe within the meaning of the regulations. (Tr. 12). He noted that from 2006 through March
2010, Plaintiff was seen numerous times in the emergency room and there was no evidence that
Plaintiff complained of mental problems at those times. In addition, Plaintiff did not list a
mental impairment as an impairment in his application. Further, neither at the time of the alleged
onset date, nor at the time Dr. Smith evaluated Plaintiff, was Plaintiff receiving any treatment
for any particular mental impairment.
In this case, when discussing whether Plaintiff’s mental impairments constituted “severe”
impairments, the ALJ addressed Dr. Smith’s April 8, 2009 opinion as follows:
Dr. Smith diagnosed the claimant with cognitive dysfunction,
nonpsychotic, chronic, progressive, secondary to general medical
condition (Exhibit 4F). According to Dr. Smith, the claimant’s
mental impairment rendered him “disabled at this time” (Exhibit
4F). However, the results from Dr. Smith’s tests are not fully
consistent with his diagnosis.
Dr. Smith administered the Wechsler Adult Intelligence Scale
(WAIS), and the claimant scored a verbal IQ of 101, performance
IQ of 99, and full scale IQ of 100 (Exhibit 4F). Such test scores
do not indicate a cognitive dysfunction which so limits the
claimant that he cannot perform basic work activities. Dr. Smith
performed a number of other tests and concluded that they
showed a pattern of abnormal responses consistent with the
diffuse organic brain dysfunction (Exhibit 4F). Those findings are
conclusory, however, because his report never explains how the
results are abnormal. The claimant testified concerning head
injuries, but no medical evidence relates those specific injuries to
any loss of mental capacity.
Dr. Smith indicated in a medical source statement that in several
areas the claimant was either seriously limited or unable to meet
competitive standards, but those findings are not consistent with
someone who has a full scale IQ of 100. The medical source
statement is also discounted because the claimant continued to
engage in some basic work activities through 2006 (Exhibit 5D),
even if they did not reach the level of substantial gainful activity.
Consequently, the claimant’s cognitive dysfunction is considered
a non-severe impairment.
(Tr. 12). There is no question that the ALJ considered Dr. Smith’s opinions in light of all the
evidence of record, and the Court is of the opinion that there is substantial evidence to support
the ALJ’s finding that Plaintiff did not suffer from a severe mental impairment.
Plaintiff also argues that the ALJ erred in denying the request to send Plaintiff for a
pulmonary function test. The ALJ addressed this request as follows:
The claimant’s attorney has requested that the claimant be sent for a
pulmonary consultative examination. (Exhibit 14E) This request is denied
due to the fact that, despite an extensive medical history of respiratory
problems, the claimant continues to smoke from one-half to two packs of
cigarettes a day according to the medical records. Further, the doctor who
recently examined the claimant on March 10, 2010, declined to order a
pulmonary function examination. According to the doctor, the claimant
was experiencing moderate symptoms which were relieved by
medication, which the doctor noted the claimant had not refilled. (Exhibit
Throughout the period of time represented by the documents in the transcript, Plaintiff
smoked anywhere from ½ pack to 2 packs of cigarettes per day, despite being continuously
advised by physicians that he needed to quit smoking. (Tr. 69-70, 246, 248-249, 266, 268, 276278, 298, 305, 337, 341-344). In addition, when Plaintiff ran out of his prescription inhalers on
occasion, he failed to have them refilled, indicating noncompliance. (Tr. 266, 268, 343). “The
regulations do not require the Secretary or the ALJ to order a consultative evaluation of every
alleged impairment. They simply grant the ALJ the authority to do so if the existing medical
sources do not contain sufficient evidence to make a determination.” Matthews v. Bowen, 879
F.2d 423, 424 (8th Cir. 989). Such is not the case here. The Court finds there is substantial
evidence from which the ALJ could make a decision regarding Plaintiff’s respiratory ailments.
Plaintiff asserts that his previous arguments support the fact that there was not
substantial evidence to support the ALJ’s findings. The Court does not agree. As indicated by
Defendant, the ALJ considered Plaintiff’s repeated episodes of his ignoring medical advice to
stop abusing tobacco, and to take his medication as prescribed, followed by visits to the
emergency room when his breathing was compromised. (Tr. 13-14). In addition, the ALJ was
allowed to consider Plaintiff’s failure to stop smoking when making his credibility determination
in this case, where Plaintiff had continued to smoke throughout his bouts with shortness of breath
issues. See Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008).
In addition, the medical evidence indicates that but for Plaintiff’s breathing issues and
inability to flex his right ankle, Plaintiff was able to walk, stand, sit, lift, carry, handle, finger,
see, hear and speak. (Tr. 294).
Based upon the Court’s foregoing analysis, as well as the reasons given in Defendant’s
well-stated brief, the Court finds there is substantial evidence to support the ALJ’s findings.
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 2nd day of July, 2013.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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