Brown v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 4, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
PAULA L. BROWN
Civil No. 12-3149
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, Paula L. 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 his/her claim
for disability insurance benefits (“DIB”) under Title II of the Social Security Act (hereinafter “the Act”),
42 U.S.C. §§ 423(d)(1)(A). In this judicial review, the court must determine whether there is substantial
evidence in the administrative record to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
Plaintiff applied for DIB on June 9, 2010. (Tr. 9.) Plaintiff alleged an onset date of June 21, 2006
due to congestive heart failure, fluid in lungs, cellulitis, GERD, right shoulder surgery, and angina. (Tr.
8, 140.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff requested an
administrative hearing, which was held on September 8, 2011. (Tr. 21.) Plaintiff was present to testify
and was represented by counsel. The ALJ also heard testimony from Plaintiff’s husband, Richard. E.
Brown and Monty Lumpkin, Vocational Expert (“VE”). (Tr. 21.)
At the time of the administrative hearing, Plaintiff was 57 years old, and possessed a high school
diploma, two years of college education, and had been a Licensed Practical Nurse (“LPN”). (Tr. 25-26,
142.)The Plaintiff had past relevant work experience (“PRW”) of nursing. (Tr. 58.)
On December 2, 2011, the ALJ concluded that Plaintiff had no severe impairments. (Tr. 10.)
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.
Plaintiff requested a review by the Appeals Council on December 22, 2011. (Tr. 69.) The Appeals
Council denied the appeal on October 25, 2012. (Tr. 1.)
This Court's role is to determine whether the Commissioner's findings are supported by substantial
evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Substantial evidence
is less than a preponderance, but enough that a reasonable mind would find it adequate to support the
Commissioner’s decision. Id. “Our review extends beyond examining the record to find substantial
evidence in support of the ALJ’s decision; we also consider evidence in the record that fairly detracts from
that decision.” Id. As long as there is substantial evidence in the record to support the Commissioner’s
decision, the court may not reverse the decision simply because substantial evidence exists in the record
to support a contrary outcome, or because the court would have decided the case differently. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent
positions from the evidence, and one of those positions represents the Secretary’s findings, the court must
affirm the decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his disability by establishing a physical or mental disability that has lasted at least one year and
that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines “physical or mental
impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ § 423(d)(3), 1382(3)(c). A plaintiff must show that his disability, not simply his impairment, has lasted
for at least twelve consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation process to
each claim for disability benefits: (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).
Plaintiff raises several issues on appeal: 1) that the ALJ failed to consider medical evidence both
prior to and after her date last insured which showed that she was suffering from coronary artery disease
and congestive heart failure; 2) the ALJ failed to failed to obtain expert medical evidence regarding
Plaintiff’s medical condition prior to her date last insured; and 3) the ALJ erred by not finding Plaintiff’s
medically determinable issues with her shoulder and gastroesophageal reflux disease (“GERD”) to be
severe impairments. (Pl.’s Br. 12.)
A. No Medical Evidence Showing Symptoms of Early Cardiac Issues in Progress Prior to
Date Last Insured
Plaintiff argues that she was “carrying the risk of congestive heart failure and coronary artery
disease” as of April 2010. (Pl.’s Br. 13.) While April 2010 is after Plaintiff’s date last insured, nonetheless
this Court carefully examined the medical record for any retrospective medical diagnoses that might show
pre-expiration evidence of cardiac issues. Unfortunately, such evidence simply does not exist.
“ In order to receive disability insurance benefits, an applicant must establish that she was disabled
before the expiration of her insured status.” Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir. 1998). (citing 42
U.S.C. §§ 416(i), 423(c); Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir.1995) (per curiam)). “It is wellsettled that evidence of a disability subsequent to the expiration of one’s insured status can be relevant in
“helping to elucidate a medical condition during the time for which benefits might be rewarded.”Id. For
example, in the case of degenerative diseases which, inherently by their nature must begin prior to an onset
date of disability, “[r]etrospective medical diagnoses constitute relevant evidence of pre-expiration
disability.” Jones v. Chater, 65 F. 3d 102, 103 (8th Cir. 1995) (citing McClain v. Bowen, 848 F.2d 892,
894 (8th Cir. 1988). “However, evidence outside the relevant time period cannot serve as the only support
for the disability claim.” Pyland, 149 F.3d at 878 (citing Milton v. Schweiker, 669 F.2d 554, 555 n. 1 (8th
Cir.1982) (per curiam) (noting that a heart attack subsequent to the expiration of insured status without
evidence of a heart condition during the relevant time period cannot serve as a basis for recovering
Plaintiff’s date last insured is September 30, 2009. (Tr. 8.) There are two pre-expiration medical
documents noting a possible cardiac complaint in the record. On April 1, 2003, Plaintiff presented at St.
John Medical Center with atypical chest pain. (Tr. 230.) During her admission, all of her cardiac tests were
normal. (Tr. 230.) A “GI cocktail” relieved her pain. (Tr. 231.) She was discharged with a prescription for
Prevacid2 and nitroglycerin. Concerning the nitroglycerin, the discharging physician noted: “this
medication is given because the patient said it relieved her pain. Although, we believe the pain is GI related
rather than cardiac at this point. If the patient continues to have chest pain symptoms, a cardiology consult
may be considered in the future.” (Tr. 231.) On November 30, 2005, Plaintiff presented at the Unity
Health Center Emergency room complaining of unstable angina. Her cardiac angiogram was normal. Dr.
Gupta stated “really, no symptoms” in his notes. Dr. Gupta felt “some of her problems are related to
anxiety, stress.” His final diagnosis on December 1, 2005 was acute chest pain, with myocardial infarction
Prevacid is a proton pump inhibitor indcated for treatment of duodenal ulcers, active benign gastric
ulcer and erosive esophagitis.http://www.pdr.net/drug-summary/prevacid?druglabelid=1930&id=1468. (Las
accessed March 4, 2014.)
ruled out. “Patient has normal coronaries.” Instead of any cardiac disease he indicated “possible
gastroesophogeal spasm reflux disease and anxiety stress depression. (Tr. 256.)
There are no medical documents whatsoever between December 2005 and March 2010.
Plaintiff’s medical record picks up again in March 2010 where she was established as a new
patient with Dr. Bogle at Ahrens Medical Clinic. She presented with a cough, congestion, and head
congestion. (Tr. 358.) Diagnosis/impression was bronchitis, chronic obstructive pulmonary disease
“COPD”), hypothyroidism, and health maintenance. In April 2010 she presented for a “followup with
coronary artery disease, worsening shortness of breath.” Dr. Bogle admitted her to Baxter Regional
Hospital for a cardiac workup. She was stable to travel in a private car. (Tr. 357.)
In May 12, 2010 she saw Dr. Bogle for a “followup from hospital.” He stated that he had sent her
to the hospital due to the possibility of mild congestive heart failure. In summarizing the tests from the
hospital he stated the following: “Echo had actually looked pretty good, but she did improve greatly with
decreasing her fluid load. On discharge he placed her on lisinopril and “all her cardiac markers were
negative.” (Tr. 356.) Dr. Bogle kept her on Lasix and lisinopril and arranged a stress test. Impression was
chest pain and shortness of breath. (Tr. 356.) On May 25, 2010, Dr. Bogle’s impression was congestive
heart failure and GERD. (Tr. 354.)
Thus, the first time Plaintiff was actually diagnosed with any cardiac issue is May 25, 2010. (Tr.
354.) This is several months after her date last insured of September 30, 2009. Nor is there any indication
in the record that the Plaintiff was somehow in the early stages of congestive failure prior to her date last
insured. It is true that congestive heart failure “ usually involves gradual deterioration.”3 However, with
no diagnosis of even possible heart failure in 2003 and 2005, and no medical records at all between 2005
and 2010, this Court simply cannot find any indication of a degenerative disease pattern in progress.
THE MERCK MANUAL,
ngestive%20heart%20failure&alt=sh#v936076 (last accessed Feb. 27, 2014).
B. No Failure to Develop the Record
Plaintiff acknowledges that it is not possible for a retroactive physical examination to be made,
(Pl.’s Br. 15.), but argues that the ALJ failed to fully develop the record because he did not obtain a
medical opinion to support his decision that the heart-related diagnoses did not exist during the relevant
time period.” (Pl.’s Br. 14.)
The Agency explicitly recognizes that “[w]ith slowly progressive impairments, it is sometimes
impossible to obtain medical evidence establishing the precise date an impairment became disabling.” SSR
83-20. “In such cases, it will be necessary to infer the onset date from the medical and other evidence that
describe the history and symptomatology of the disease process.” Id. The ALJ is required to seek the
assistance of a medical advisor to make that inference “only if the medical evidence of onset is
ambiguous.” Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir. 1997). See e.g. Id. (when medical
evidence from 1983 and 1984 indicated that claimant’s multiple sclerosis symptoms were not yet
disabling, then the ALJ did not require a medical advisor to determine that onset had not yet occurred in
1982); Karlix v. Barnhart, 457 F.3d 742, 747 (8th Cir. 2006)(ALJ did not need medical advisor when
there was no medical evidence to support alleged onset date ).
As detailed above in Section A, there is no medical evidence to support any allegation of cardiac
issues prior to May 2010. (Tr. 354.) This is several months after Plaintiff’s date last insured of September
30, 2009. There is no ambiguity in this medical record. Therefore, the ALJ did not need a medical advisor
to help him infer the onset date.
C. No Error in Finding Shoulder Issues and GERD Non-severe
Plaintiff argues that SSR 99-3p required the ALJ to find that Plaintiff’s GERD and history of right
shoulder surgery were severe impairments because she provided objective medical evidence that they were
medically determinable impairments. (Pl.’s Br. 14.)
As this Court has stated before, Plaintiff’s reliance on SSR 99-3p is disingenuous at best. SSR 993p was superceded in 2003 by SSR 03-3p. Further, SSR 03-3p provides guidance for evaluating
impairments for individuals aged 65 or older. Given that Plaintiff was 57 at the time of the hearing in
2011, SSR 03-3p is not applicable to this case.
Nonetheless, the ALJ recognized Plaintiff’s GERD and right shoulder surgery as medically
determinable impairments but did not find them to be severe at Step Two of his analysis. “An impairment
is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's
physical or mental ability to do basic work activities.” See Bowen v. Yuckert, 482 U.S. 137, 153 (1987).
The burden is upon the plaintiff to establish that an impairment is severe. Kirby v. Astrue, 500 F.3d
705, 707 (8th Cir. 2007). This burden is not a difficult one for the Plaintiff to meet. Id. However, it is also
not a “toothless standard” requiring the ALJ to simply rubber-stamp any impairment as severe. Id. The
Eighth Circuit has repeatedly upheld the Commissioner in finding that a claimant did not provide sufficient
evidence of severity at Step Two. Id. See e.g. Id.at 708 (hand tremors not severe when there was evidence
that claimant exaggerated or invented ailments, medical exams proved normal, and any genuine
impairment was slight); Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir.1997) (claimant never
followed a regular regime of medical treatment for physical complaints and used no prescription
medications for pain or for other conditions; Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996.)
(generalized osteoarthritis with significant osteoarthritis in both knees which could be controlled with mild
anti-inflammatories was not severe).
In this case, Plaintiff had shoulder surgery on November 21, 2003 and reported her shoulder as
doing “much, much better” on December 1, 2003. (Tr. 409.) She did not attend any physical therapy. (Tr.
408.) There are no medical records indicating treatment for or complaints about her shoulder past January
21, 2004. (Tr. 408.)
Plaintiff was diagnosed with GERD on April 2, 2004 when she presented for atypical chest pain
on April 1, 2004. (Tr. 230.) At that time she told the physicians that she had been taking medication for
a peptic ulcer, but stopped. (Tr. 230-31.) She was diagnosed with GERD again on December 1, 2005 when
she presented at Unity Health Center ER for atypical chest pain. (Tr. 256.) As discussed above in Section
A, there are no further medical documents whatsoever between December 2005 and March 2010.
In summary, it does not appear that the Plaintiff has followed any regime of regular treatment for
her shoulder or her GERD. Accordingly, the ALJ’s determination that these impairments are not severe
is supported by substantial evidence.
Accordingly, having carefully reviewed the record, the undersigned finds substantial evidence
supporting the ALJ’s decisions, and thus the decision should be affirmed.4 The undersigned further finds
that the Plaintiff’s Complaint should be dismissed with prejudice.
DATED this 4th day of March 2014.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
While this Court has affirmed the decision of the ALJ, it is not without concern for the Plaintiff’s
current medical condition. If she has not already done so, she is urged to discuss the possibility of pursuing SSI
benefits with counsel.
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