McNair v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 6, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DAVID J. MCNAIR
Civil No. 13-3076
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, David McNair, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying his claim for disability insurance benefits (“DIB”) and supplemental insurance benefits
(“SSI”) under Titles II and 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 his application for DIB and SSI on November 22, 2010, alleging an
onset date of November 3, 2010, due to diabetes, neuropathy, and coronary artery disease. Tr.
113-126, 163, 177-178, 189, 192, 195-196, 212-213. His claims were denied both initially and
upon reconsideration. Tr. 53-70. An administrative hearing was then held on November 16,
2011. Tr. 25-52, 71-76. Plaintiff was both present and represented at that hearing.
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.
At the time of the administrative hearing, Plaintiff was 39 years old and possessed a high
school education. Tr. 28, 113, 163. He had past relevant work (“PRW”) experience as a truck
driver, river guide and cook, plumber, mayor, and communication technician. Tr. 28-40, 164,
On May 4, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
medically determinable, Plaintiff’s diabetes mellitus, neuropathy, and coronary artery disease did
not constitute severe impairments. Tr. 16-20.
The Appeals Council denied Plaintiff’s request for review on June 11, 2013. Tr. 1-5.
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. 15, 17.
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 we find it possible “to draw two inconsistent positions from the evidence,
and one of those positions represents the Secretary’s findings, we 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 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 disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Evaluation Process:
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 or her 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 or her 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 contends that the ALJ erred in terminating his analysis at step two of the
sequential evaluation process. We disagree. The Court has reviewed the entire transcript. The
complete set of facts and arguments are presented in the parties’ briefs and the ALJ’s opinion, and
are repeated here only to the extent necessary.
In support of his argument, Plaintiff asserts that SSR 99-3p provides that “any medically
determinable impairment will be considered ‘severe.’” However, his reliance on this Ruling is
misplaced. SSR 99-3p explains that “[i]f an individual age 72 or older has a medically
determinable impairment, that impairment will be considered to be ‘severe’.” See SSR 99- 3p,
1999 WL at *1, 3. Plaintiff was only 38 years old on his alleged onset date. Tr. 28, 113. See
Parrish v. Colvin, No. 12-3115, 2013 WL 5434611, at *2 (W.D.Ark. Sept. 27, 2013) (noting that
SSR 99-3p applied only to individuals age 72 or older and the claimant was 57 at the time of the
hearing). Accordingly, SSR 99-3p does not apply in this case.
Plaintiff also contends that his diabetes, neuropathy, and coronary artery disease were
severe, as they were “well established by the record.” A medically determinable impairment or
combination of impairments is “severe” within the meaning of the Act if it imposes significant
restrictions on a claimant’s ability to perform basic work activities, which are the abilities and
aptitudes necessary to do most jobs, including physical functions, as well as mental functions such
as the capacity for understanding, carrying out, and remembering instructions, and using
judgment. 20 C.F.R. §§ 404.1520(c), 404.1521(b) , 416.920(c), 416.921(b); SSR 96-3p, 1996 WL
374181. An impairment is non-severe if it is a slight abnormality or combination of slight
abnormalities that have no more than a minimal effect on the ability to do basic work activities.
20 C.F.R. §§ 404.1521, 416.921; see also Simmons v. Massanari, 264 F.3d 751, 755 (8th Cir.
2001). It is Plaintiff’s burden to establish a severe impairment, and although severity is not an
“onerous requirement,” severity is also not a “toothless standard.” Kirby, 500 F.3d at 707-708.
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, 898 F.2d 1361, 1364 (8th
Cir. 1990). Further, alleged impairments may not be considered severe when they are stabilized
by treatment or otherwise unsupported by the medical record. Johnston v. Apfel , 210 F.3d 870,
875 (8th Cir. 2000).
According to the record, Plaintiff was diagnosed with type II diabetes mellitus in February
2008. Tr. 365. Dr. Michael Hodges provided him with follow-up treatment during the relevant
time period. In November 2009, Dr. Hodges noted that Plaintiff was stable on insulin and dietary
intervention, though he was not walking as much as he would like and did not have a structured
exercise program. Tr. 278-280. Plaintiff denied any new or non-healing wounds or loss of
sensation, and was compliant with follow-up treatment. A physical examination also revealed
intact sensation and a normal gait, with no abnormalities noted. Later in the month, after a brief
hospitalization for a blocked intestine and gastroenteritis, Plaintiff followed up with Dr. Hodges.
Tr. 286-289. At this time, there were no diabetic concerns and his physical exam was unchanged.
Dr. Hodges again assessed his diabetes as stable and with satisfactory control via insulin and
dietary intervention. 2 See Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (holding if an
impairment can be controlled by treatment or medication, it cannot be considered disabling).
It is significant to note that during this time period when Plaintiff was compliant with treatment and his
diabetes stable, he earned $25,064.25 in 2008, $23,290.44 in 2009, and $23,622.81 in 2010. Tr. 135, 151
Plaintiff did not seek further treatment for his diabetes until November 2010, at which
time he reported problems with elevated blood sugar, leg pain, and fluctuating weight. Tr. 298300, 317-319. His most recent HgA1c level was significantly elevated at 11 percent. Dr. Hodges
again noted that Plaintiff was not walking as much as he would like and had no structured
exercise program. And, he indicated that Plaintiff had not been compliant with his medication
regimen, dietary plan, exercise recommendations, or his follow-up treatment schedule. See
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (failure to follow a recommended course
of treatment weighs against a claimant’s credibility). Plaintiff denied any new or nonhealing
wounds or loss of sensation in his extremities, and an examination revealed no abnormalities with
intact sensation to light touch in his extremities. Dr. Hodges prescribed Glucophage and
In early December, Plaintiff returned in follow-up. Tr. 303-305, 322-324. Although his
blood sugar levels had improved, Plaintiff complained of muscle weakness and pain, headaches,
fatigue, intolerance to medications, and numbness and tingling in his feet. He also reported
sneezing, nasal congestion, a sore throat, and a cough. Dr. Hodges assessed him with diabetes
with neurological manifestations. He prescribed Doxycycline.
In late December, Plaintiff returned reporting problems with hyperglycemia. Tr. 306-308,
325-327. Again, he reported no new or non-healing wounds or loss of sensation in his
extremities. And, Plaintiff specifically denied experiencing tingling or numbness. Although
Plaintiff still was not walking as much as he would like and had no structured exercise program,
Dr. Hodges noted him to be compliant with medication regimen and follow-up. He then
There are no further records of treatment with Dr. Hodges until Plaintiff appeared at the
hospital in May 2011 with complaints of chest pain, and was seen by Dr. Hodges. Tr. 419-421.
However, Plaintiff did participate in research at St. Jude Hospital in March 2011 as part of the St.
Jude Life Study to learn how treatment for cancer he received as a child in 1979 affected how the
brain functions as an adult, and examinations and tests were performed as part of this research,
but this does not appear to have been for purposes of treatment.3 Tr. 333-357, 363-418. In fact,
the doctors noted that Plaintiff was being followed by his primary care physician. Tr. 341. A
physical exam was essentially normal with a normal range of motion, normal strength, no
tenderness, no swelling, and a normal gait, as well as a normal visual exam of the feet and no
apparent neurological deficits. Tr. 336-339.
The doctor did recommend that he see an
endocrinologist and mentioned the possibility of the endocrinologist prescribing an insulin pump
as the best option for glucose control. He noted, however, Plaintiff’s past refusal of said pump.
A CT bone densitometry revealed borderline elevated bone mineral density and significant
atherosclerotic disease within the abdominal aorta. Tr. 333-357, 363-418.
Plaintiff was hospitalized from May 27, 2011, until May 30, 2011, after experiencing
chest pains while attempting to clean a chicken coup. Tr. 419-421. His pain partially resolved
via the use of Aspirin and Nitroglycerin. Serial cardiac enzymes and an EKG were negative. On
discharge, Plaintiff had no chest pain and a normal heart-lung examination. His diagnoses were
1) chest pain secondary to coronary artery disease, 2) coronary artery disease with 50% calcified
The undersigned notes the fact that Plaintiff’s childhood cancer treatment has placed him at increased
risk of developing a number of health problems as he ages. However, it is not the predisposition to these
impairments or even the diagnosis of them that is of concern in this case. Rather, it is the severity, or lack
thereof, of the impairment that is pivotal.
stenosis of left anterior descending artery just past the first diagonal branch, small diffuse disease
in the right coronary artery and 80% PDA lesion in an already small vessel with an ejection
fraction rate of 60% based on angiogram, 3) type 2 diabetes, insulin-requiring, poorly controlled,
and 4) severe mixed hyperlipidemia. He was discharged with prescriptions for Metformin,
Humalog, Gabapentin, Crestor, Nexium, Insulin, Tramadol, sublingual Nitroglycerine, and
Aspirin. There is, however, no indication that Plaintiff’s condition necessitated stent placement
or other surgical intervention. And, no physical limitations or restrictions were imposed.
On February 7, 2011, Dr. Bill Payne, a non-examining, consultative doctor completed an
RFC assessment. Tr. 329-331. After reviewing Plaintiff’s medical records, he concluded
Plaintiff’s impairments were non-severe. This assessment was affirmed by Dr. Stephen Whaley
on May 8, 2011. Tr. 358-362.
The evidence also reveals that Plaintiff’s subjective reports of activities is inconsistent
with his claim of disability. He reported the ability to perform all self-care activities without
assistance, cook, perform household chores (with breaks), walk at least once a day, drive a car,
shop in stores, handle money, go fishing (although for shorter periods), spend time with others,
watch television, and watch his children play sports (with some limitations associated with sitting
in the bleachers). Tr. 183, 201 Clearly, these are not the activities you would expect of a disabled
individual. See Riggins v. Apfel, 177 F.3d 689, 692 (8th Cir. 1999) (activities such as driving his
wife and children to work and school, shopping, visiting his mother, watching television, and
playing cards were inconsistent with complaints of disabling pain).
While we note Plaintiff’s history of diabetes with some evidence of neuropathy, we also
note the absence of motor function deficits or end organ disease. In fact, physical exams revealed
no neurological deficits and a normal gait. 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). And,
aside from alleging tingling and numbness on one occasion, Plaintiff denied experiencing these
symptoms. Further, based upon Plaintiff’s stable diabetes in 2009 when compliant with
treatment, we agree with the ALJ’s determination that Plaintiff’s conditions was amenable to
consistent treatment. See Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) (the claimant’s
medically determinable impairments of diabetes, hypertension, and ulcers were controlled with
diet and medication, and therefore, not severe and not disabling).
With regard to his coronary artery disease, the blockage did not require stenting, instead
responded to conservative treatment via Aspirin and sublingual Nitroglycerine. See id. Further,
Plaintiff’s doctors assessed no functional limitations. See Baldwin v. Barnhart, 349 F.3d 549, 557
(2003) (physicians noted few abnormalities, and none of Plaintiff’s independent physicians
restricted or limited P’s activities). Instead, and actually encouraged exercise, weight loss, diet
control, and smoking cessation.
Lastly, Plaintiff alleges that the ALJ failed to consider his impairments in combination.
However, as stated above, the ALJ clearly considered all of his impairments. Hajek v. Shalala,
30 F.3d 89, 92 (8th Cir. 1994). Accordingly, we find substantial evidence to support the ALJ’s
determination that Plaintiff’s impairments are non-severe.
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 6th day of October 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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