Cohee v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on June 9, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DAVID R. COHEE
Civil No. 14-3013
CAROLYN W. COLVIN, Commissioner,
Social Security Administration
Plaintiff, David Cohee, 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 supplemental security income (“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).
Plaintiff filed his application for SSI on September 28, 2011, alleging an onset date of
February 15, 2011, due to irritable bowel syndrome (“IBS”). Tr. 155-156. The Commissioner
denied his application initially and on reconsideration. Tr. 12. At the Plaintiff’s request, an
Administrative Law Judge (“ALJ”) held an administrative hearing on August 6, 2012. Tr. 21-59.
Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 53 years old and possessed a high school education.
Tr. 24. He had past relevant work (“PRW”) experience as a poultry equipment sales representative,
truck driver, delivery truck driver, forklift driver and bill collector. Tr. 24-29, 149, 179-186.
On June 21, 2013, the ALJ concluded that the Plaintiff’s abdominal abscess status post
multiple stomach surgeries constituted a medically determinable impairment. Tr. 14. However,
the ALJ found he did not have an impairment or combination of impairments that has significantly
limited his ability to perform basic work-related activities for 12 consecutive months.
accordance, the ALJ concluded that the Plaintiff’s impairment was not severe and the Plaintiff was
not disabled. Tr. 14.
The Appeals Council denied the Plaintiff’s request for review on January 9, 2014. Tr. 15. Subsequently, Plaintiff filed this action. ECF No. 1. This matter is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for decision.
ECF Nos. 9, 10.
This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. 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. We must affirm the ALJ’s decision 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, we must affirm the ALJ’s decision. Young v. Apfel, 221 F.3d 1065, 1068
(8th Cir. 2000).
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 or her disability, not simply their impairment, has lasted for at least twelve consecutive
The Commissioner’s regulations require her 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 he reaches the final stage 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).
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
In his sole issue on appeal, Plaintiff asserts that the ALJ prematurely ended his analysis at
step two. At step two, the Plaintiff bears the burden to demonstrate the existence of an impairment
or combination of impairments that “significantly limits [his] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). While step two requires only “de minimis” proof of
impairment, the claimant must show more than the mere presence of a condition or ailment. Kirby
v. Astrue, 500 F.3d 705, 707 (8th Cir 2007). When the evidence only supports a minimal effect
on the claimant’s ability to work, the ALJ may properly end the sequential evaluation process at
step two and find the claimant not disabled. See Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (sequential evaluation process may be ended at step two only when an impairment or
combination of impairments would have no more than a minimal impact on the claimant’s ability
Although the Plaintiff does point out a diagnosis of COPD and diverticulitis, we can find
no evidence to indicate that he raised these issues in his application for benefits or at the
administrative hearing. We do note that CT scans conducted in May, June, and August 2011
revealed chronic pancreatitis; treatment notes dated May 2011 revealed a diagnosis of COPD; and,
a colon biopsy dated July 2011 revealed the presence of diverticula. Tr. 202, 291, 327, 504, 561,
578. However, the record contains no evidence of treatment for, symptoms of, or limitations
related to COPD, pancreatitis, or diverticulitis. See Trenary v. Bowen, 898F.2d 1361, 1364 (8th
Cir. 1990) (a mere diagnosis is not sufficient to prove disability, absent some evidence to establish
a functional loss resulting from that diagnosis). Moreover, in spite of these allegations, we note
that the Plaintiff smoked cigarettes and drank alcohol in excess. Tr. 15, 192-288, 391-596. See
Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008) (claimant continued to smoke a pack a day
despite COPD, which undermined claims of disability).
As for his abdominal abscess status post multiple stomach surgeries, the evidence reveals
as follows: In May 2011, Plaintiff underwent a laparoscopic cholecystectomy and appendectomy
for complaints of severe abdominal pain. Tr. 290-388. Post operatively, he developed an abscess
around the appendectomy site, which doctors treated with both percutaneous drainage and open
drainage. On August 1, 2011, Dr. John Cone diagnosed the Plaintiff with recurrent intraabdominal and retroperitoneal abscesses. Tr. 193-281. A repeat CT scan showed a retroperitoneal
abscess and a smaller abscess in the region of the surgical scar. Dr. Cone believed the second
abscess resulted from an injury to the colon sustained in the prior drainage attempts. Accordingly,
he admitted the Plaintiff for percutaneous drainage and IV antibiotic therapy. When Plaintiff
returned for a drain check on August 25, 2011, the doctor noted minimal residual abscess within
the right mid-abdomen and removed the drain. He indicated that the Plaintiff was “clinically
asymptomatic,” “was doing very well,” and “had recovered completely.” Tr. 284. There are no
additional medical records to document treatment for any impairment.
In spite of his alleged symptoms, Plaintiff reported the ability to prepare meals daily, do
his laundry, walk, drive, shop in stores for food, watch television, play the piano, and fish. Clearly,
these activities provide support for the ALJ’s determination that the Plaintiff’s impairment was
The Plaintiff also alleges that the ALJ should have ordered a consultative examination.
To support his argument, the Plaintiff points to the ALJ’s statement at the hearing that the Plaintiff
needed “some consult.” Tr. 49-50. However, the ALJ also noted that he would see “what [he]
could come up with.”
Further, he acknowledged that without more invasive testing, the
consultative doctor would likely just be guessing. Tr. 50. As such, we do not find this to be an
admission that a consultative examination was necessary.
We note that the ALJ is only required to order a consultative examination when there is
insufficient evidence in the record for him to make an informed decision. See Freeman v. Apfel,
208 F.3d 687, 692 (8th Cir. 2000) (“[I]t is reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him to make an informed decision”).
Although the Plaintiff claims that his symptoms had continued and worsened after the relevant
period lapsed, he failed to seek out additional medical treatment for his alleged complaints.
Moreover, we can discern no evidence to suggest that medical providers denied him medical
treatment, or that he attempted to obtain low cost or indigent health services. Murphy v. Sullivan,
953 F.2d 383, 386-87 (8th Cir. 1992) (holding lack of evidence that the claimant attempted to find
any low cost or no cost medical treatment for her alleged pain and disability is inconsistent with a
claim of disabling pain).
Accordingly, it is the opinion of the undersigned that the ALJ’s step two determination is
supported by substantial evidence. The ALJ’s decision will stand.
Having carefully reviewed the record, the undersigned finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and the decision is affirmed. The
undersigned further orders that the Plaintiff’s Complaint be dismissed with prejudice.
DATED this 9th day of June, 2015.
/s/Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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