Waltz v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 2, 2011. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 10-5054
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Steven Waltz, 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 claim for a period of disability and disability insurance benefits (DIB) under the
provisions of Title II 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 protectively filed his current application for DIB on July 9, 2007, alleging an
inability to work since March 1, 2007, due to severe light sensitivity, seizures and/or syncopal
episodes, and headaches. (Tr. 116-118, 142). An administrative hearing was held on January
8, 2009, at which Plaintiff appeared with counsel and testified. (Tr. 8-57).
By written decision dated May 12, 2009, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.67).
Specifically, the ALJ found Plaintiff had the following severe impairments: epilepsy/seizure
disorder and a mood disorder. However, after reviewing all of the evidence presented, he
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. 67). The ALJ found Plaintiff retained the residual functional capacity (RFC) to
perform a full range of work at all exertional levels, but with the following nonexertional limitations: the claimant cannot drive, tolerate exposure to hazards,
such as unprotected heights or heavy machinery, and he cannot climb
ropes/ladders/scaffolds. The claimant can have no exposure to extreme heat. The
cliamant (sic) can perform low stress (occasional decision making and
occasionally changes in work place settings), unskilled work.
(Tr. 69). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a hand packager, a small products assembler and a machine tender.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 19, 2010. (Tr. 1-3). Subsequently, Plaintiff filed this action.
(Doc. 1). On August 17, 2010, Plaintiff filed a Motion to Introduce New Evidence. (Doc. 9).
On August 25, 2010, Defendant filed a Response objecting to the Motion. (Doc. 12). This case
is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both parties have filed
appeal briefs, and the case is now ready for decision. (Docs. 11,15).
At the administrative hearing before the ALJ on January 8, 2009, Plaintiff, who was fifty-
two years of age, testified that he obtained a high school education. (Tr. 14). Plaintiff testified
that in June of 2008 he started working part-time at a convenience store as a cashier, cook and
stocker. (Tr. 17). Plaintiff testified that he went to work full-time for a couple of months but
had to go back to part-time work because the job was too stressful. (Tr. 18). Plaintiff explained
that he had difficulty being a cashier, cook and stocker all at the same time, especially when the
store was busy and he was the only employee working. The record reflects Plaintiff’s past
relevant work consists of work as a forklift operator and a mat packer (Tr. 51-52).
The pertinent medical evidence in this case reflects the following. In a letter dated
December 8, 2006, Dr. Mark A. Bonner stated Plaintiff was under his care and could return to
work as of December 8, 2006. (Tr. 228). Dr. Bonner restricted Plaintiff from working more than
forty hours per week for the next two weeks.
On December 21, 2006, Plaintiff underwent a CT of the head which revealed no acute
intracranial hemorrhage; and a 2.5 cm right maxillary sinus mucous retention cyst and rightward
nasal septal nasal deviation. (Tr. 309).
In a letter dated January 29, 2007, Dr. Ryan Kaplan stated he saw Plaintiff for
consultation. (Tr. 243-248). Dr. Kaplan noted Plaintiff had been having spells of language
disturbance that occurred two to three times a week and that the spells lasted from minutes to
hours. Dr. Kaplan noted during two of the spells Plaintiff passed out for a couple of minutes and
woke up groggy and confused. Dr. Kaplan noted Plaintiff’s spells appeared to be triggered when
Plaintiff was tired and fatigued. Dr. Kaplan noted Plaintiff’s muscle strength and tone were
normal. He indicated Plaintiff was oriented to time, place and person. Dr. Kaplan noted
Plaintiff’s recent and remote memory were good; that Plaintiff’s attention span and concentration
were normal; and that Plaintiff’s language showed no signs of aphasia.1 Dr. Kaplan opined
Aphasia is defined as “any of a large group of language disorders involving defect or loss of the power of expression
by speech, writing, or signs, or of comprehending spoken or written language, due to injury or disease of the brain or
to psychogenic causes.” Dorland's Illustrated Medical Dictionary at 116, 31st Edition (2007).
Plaintiff was having seizures. Dr. Kaplan stated he started Plaintiff on Carbatrol, a seizure
medication. Dr. Kaplan stated that he preferred Plaintiff not work night shifts and recommended
Plaintiff undergo a brain MRI.
In a letter dated February 21, 2007, Dr. Kaplan noted he saw Plaintiff for a followup visit.
(Tr. 240). Dr. Kaplan noted Plaintiff reported having numerous spells a week which Dr. Kaplan
opined were strongly suggestive of partial seizures. Dr. Kaplan stated he had started Plaintiff
on Carbatrol and since Plaintiff was tolerating the medication well Dr. Kaplan recommended
titrating the dosage upward. Dr. Kaplan noted Plaintiff reported he had another spell just the
other day. Dr. Kaplan stated since Plaintiff reported the spells occurred when he was very
fatigued, he wrote Plaintiff a note for his work, stating Plaintiff could not work more than forty
hours per week. Dr. Kaplan noted he had a long conversation with Plaintiff regarding seizure
precautions. Dr. Kaplan stated he told Plaintiff he should not be driving a forklift at work. Dr.
Kaplan stated Plaintiff’s brain MRI did not show any significant disease but noted a right
maxillary sinus retention cyst. (Tr. 241). Dr. Kaplan opined this was completely unrelated to
Plaintiff’s chief complaint.
On March 8, 2007, Plaintiff was seen by Dr. Bonner complaining of dysarthria2 with an
onset of about a month with associated slurred speech and lightheadedness. (Tr. 235). After
examining Plaintiff, Dr. Bonner’s assessment stated fainting/vasovagal attack pending work-up,
speech disturbance pending work-up, and cyst pharynx/nasopharynx pending work-up. Dr.
Bonner indicated no unusual anxiety or evidence of depression. Plaintiff’s medications consisted
Dysarthria is defined as a speech disorder consisting of imperfect articulation due to loss of muscular control after
damage to the central or peripheral nervous system. Id. at 583, 31st Edition (2007).
of Antivert, Alprazolam and Carbatrol.
In a letter dated April 5, 2007, Dr. Kaplan stated that Plaintiff had been referred for
spells. (Tr. 234). Dr. Kaplan noted that an EEG was negative but he indicated EEGs have a high
false negative rate. Dr. Kaplan stated that since Plaintiff’s MRI of the brain and carotid
ultrasound were both unremarkable, Plaintiff could be having seizures. Dr. Kaplan stated he had
decided to treat Plaintiff with medication (Carbatrol) which Plaintiff responded to very well. Dr.
Kaplan stated Plaintiff had not had any spells in several weeks. Dr. Kaplan stated that this was
further evidence that Plaintiff’s spells could be epileptic in origin. Dr. Kaplan stated that he
could not be 100% certain and that if Plaintiff wanted more definitive proof, Plaintiff should go
to Little Rock to meet with the epiliptologist for prolonged EEG monitoring. Dr. Kaplan stated
Plaintiff became extremely upset with him because he had told Plaintiff’s work about Plaintiff’s
seizure precautions. Dr. Kaplan stated Plaintiff had initially given him permission to talk to his
work. Dr. Kaplan stated Plaintiff reported that he was now in financial hardship and that he had
recommended to Plaintiff that he seek a second neurological opinion. Dr. Kaplan stated that he
reassured Plaintiff that Dr. Moon was an excellent neurologist.
On April 10, 2007, Dr. Kaplan noted that he spoke with Plaintiff’s work concerning
Plaintiff’s restrictions. (Tr. 233). Dr. Kaplan noted that Plaintiff’s work wanted to know if the
restrictions were permanent or temporary and that he had indicated they were temporary because
Plaintiff had not undergone a full work-up. Dr. Kaplan noted that the person he spoke to had
indicated they would try to find an alternate position for Plaintiff.
On April 11, 2007, Plaintiff underwent an initial evaluation of his episodes of
unresponsiveness, by Dr. Steven L. Moon. (Tr. 232). Dr. Moon noted Plaintiff reported he had
undergone a full evaluation by Dr. Kaplan recently which included MRI imagining and EEG
testing. Plaintiff reported Dr. Kaplan had treated him with Carbatrol and recommended that
Plaintiff not drive or involve himself with any activities that might be dangerous in the event of
loss of consciousness. Plaintiff reported that Dr. Kaplan said he needed to go to Little Rock for
additional monitoring. Dr. Moon noted that he did not perform a full evaluation as Dr. Kaplan
had already performed one recently. Dr. Moon noted Plaintiff was in agreement with this. Dr.
Moon recommended that Plaintiff continue on with the precautions Dr. Kaplan had given him
and to follow up with Dr. Kaplan.
In a medical note dated June 12, 2007, Dr. Kaplan stated that he spoke with a Dr.
Towbin, an epileptologist, about seizure precautions versus seizure restrictions in work duties.
(Tr. 231). Dr. Kaplan stated Dr. Towbin was inclined to detail precautions as opposed to actually
restricting a patient. Dr. Kaplan stated he was going to follow Dr. Towbin’s approach as
Plaintiff had not been formally diagnosed with epilepsy. Dr. Kaplan stated he called Plaintiff and
the nurse at Plaintiff’s work.
In a letter dated June 14, 2007, Dr. Kaplan stated he was releasing Plaintiff back to work
without any restrictions. (Tr. 230). Dr. Kaplan stated the cautions he reviewed with Plaintiff
included the following: driving heavy machinery, machinery with dangerous moving parts, and
climbing high places.
In a letter dated July 5, 2007, Dr. Kaplan stated Plaintiff was under his neurologic care
and that Plaintiff’s date of disability was March 1, 2007. (Tr. 229, 314). Dr. Kaplan stated the
underlying cause of Plaintiff’s disability was a seizure disorder. Dr. Kaplan stated Plaintiff had
the following limitations:
no work on assembly lines, no driving, no working with heavy machinery, no
working with power tools, no climbing ladders or high places, no working with
any heavy objects or any type of electrical appliance that could produce injury
should he have a spell or seizure.
In a Clinic note dated July 27, 2007, Dr. Kaplan noted he saw Plaintiff for a follow up
appointment. (Tr. 295). Dr. Kaplan noted Plaintiff was experiencing headaches once every two
weeks approximately and that Plaintiff was treating these headaches with over-the-counter
agents. Dr. Kaplan also noted Plaintiff had seizures. Dr. Kaplan reported Plaintiff was no longer
experiencing blackout spells but he was still having frequent bouts of language
disturbance/aphagia3 which happened every three to five days. Dr. Kaplan increased Plaintiff’s
Carbatrol. Dr. Kaplan noted Plaintiff deferred any lab tests due to a lack of finances. Dr. Kaplan
noted he spent a lot of time looking over Plaintiff’s charts and filling out multiple pieces of
On July 27th, Dr. Kaplan completed a migraine headache report indicating that Plaintiff
experienced frontal headaches for which Plaintiff took over-the-counter medication. (Tr. 237).
Dr. Kaplan opined Plaintiff’s headaches did not cause any work related limitations.
On July 27th, Dr. Kaplan also completed a seizure disorder report indicating Plaintiff had
blackout events and spells of aphasia two to three times per week. (Tr. 238-239). Dr. Kaplan
noted Plaintiff started medication for seizures in January of 2007 and had the dosage adjusted
in March of 2007.
On August 22, 2007, Dr. Wheatley Beard, a non-examining medical consultant,
Aphagia is defined as the inability to swallow. Id. at 116, 31st Edition (2007).
completed a RFC assessment stating that Plaintiff had no exertional, postural, manipulative,
visual or communicative limitations. (Tr. 249-256). Dr. Beard opined Plaintiff was to avoid
even moderate exposure to hazards such as machinery, heights, etc. After reviewing all the
evidence, Dr. Mary Lanette Rees affirmed Dr. Beard’s findings on September 26, 2007; and Dr.
Bill F. Payne affirmed Dr. Beard’s findings on November 13, 2007. (Tr. 293-294, 298).
On August 23, 2007, Dr. Brad F. Williams, a non-examining medical consultant,
completed a Psychological Review Technique Form (PRTF) and opined that Plaintiff had a
mental impairment but the impairment was not severe because it was not expected to last twelve
months. (Tr. 261). Dr. Williams opined Plaintiff had mild restrictions of his activities of daily
living; mild difficulties in maintaining social functioning; mild difficulties in maintaining
concentration persistence or pace; and no repeated episodes of decompensation, each of extended
duration. (Tr. 261-288). Dr. Williams stated the following:
The claimant is 50 years old with 12 years of education. He has worked as a
production line worker and fork lift operator in the recent past. He alleges a
seizure disorder and TIAs. He does not make any specific mental allegations. His
PCP has prescribed Alprazolam. However, his PCP noted no unusual anxiety or
depression on his last visit in 03/07. Not severe mentally.
(Tr. 273, 287). After reviewing all the evidence, Dr. Dan M. Cox affirmed Dr. Williams’
findings on September 12, 2007. (Tr. 291).
In a Clinic Note dated September 28, 2007, Dr. Kaplan noted Plaintiff was doing much
better. (Tr. 303). Plaintiff reported he really only had a couple of intermittent episodes of
language disturbance on the higher dose of Carbatrol. Dr. Kaplan noted that the 300 mg dose
was making Plaintiff a little tired so Plaintiff was going to 200 mg three times a day. Dr. Kaplan
noted Plaintiff had a lot of samples of this medication at home. Dr. Kaplan noted he had talked
to Plaintiff about changing his medication to Dilantin and that Plaintiff wanted to hold off on the
change because Plaintiff could not afford to get the blood tests. Dr. Kaplan noted that he
believed Plaintiff was also applying for long-term disability.
In a Clinic Note dated January 8, 2008, Plaintiff reported he had backed down the
Carbatrol to 200 mg twice a day rather than three times a day and was doing well. (Tr. 301). Dr.
Kaplan noted Plaintiff was still not working and appeared to be harboring a “tremendous amount
of resentment” towards him. Dr. Kaplan noted Plaintiff thought he lost his job because of what
Dr. Kaplan told his employer. Dr. Kaplan noted that he just told the employer about limitations
due to Plaintiff’s underlying probable seizure disorder. Dr. Kaplan noted Plaintiff had not gone
for any long-term EEG monitoring to actually prove the diagnosis.
In a letter dated January 9, 2008, Dr. Kaplan stated that Plaintiff could return to work.4
(Tr. 302). Dr. Kaplan noted he had gone over Plaintiff’s job duties and would not include any
restrictions in Plaintiff’s return to work. However, Dr. Kaplan stated that caution needed to be
exercised if Plaintiff was to use a forklift, hand jack, double reach or wrapping machine. Dr.
Kaplan opined that caution should also be exercised when Plaintiff was exposed to extreme heat
The new evidence Plaintiff moved to be considered reflects the following. In a letter
dated December 15, 2009, Dr. Kaplan stated Plaintiff was completely disabled from a
neurological standpoint. (Doc. 9, Attachment 1). Dr. Kaplan stated Plaintiff had been diagnosed
In a letter dated January 8, 2008, Mr. Jeffrey T. Koogler, RN, of Tyson of Fayetteville wrote to Dr. Kaplan asking
about possible work restrictions that Plaintiff had due to his impairments. (Tr. 305-306).
just recently with myasthenia gravis5 and had severe weakness in his arms and legs. Dr. Kaplan
opined that due to Plaintiff’s weakness he could not hold down “any type of job whatsoever.”
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. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
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
Myasthenia gravis is defined as “an autoimmune disease of neuromuscular function...characteristics include muscle
fatigue and exhaustion that fluctuates in severity, without sensory disturbance or atrophy...it may affect any muscle of
the body, but especially those of the eyes, face, lips, tongue, throat and neck.” Id. at 1233, 31st Edition (2007).
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 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. 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. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C .F.R. § 404.1520.
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled.
Defendant argues substantial evidence supports the ALJ’s determination.
Motion for New and Material Evidence:
A court may remand a social security claim for consideration of additional evidence “only
upon a showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” Hepp v. Astrue, 511
F.3d 798, 808 (8th Cir.2008) (quoting 42 U.S.C. § 405(g)). “To be material, new evidence must
be non-cumulative, relevant, and probative of the claimant's condition for the time period for
which benefits were denied, and there must be a reasonable likelihood that it would have
changed the Secretary's determination.” Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir.1993).
In the ALJ’s decision of May 12, 2009, the ALJ expressly noted that the time period
under consideration was March 1, 2007 through May 12, 2009. The new evidence, a letter from
Dr. Kaplan, is dated December 15, 2009. With regard to this letter, the Court points out that it
was written over seven months after the relevant time period. Furthermore, Dr. Kaplan stated
Plaintiff had “just recently” been formally diagnosed with myasthenia gravis. This new evidence
Plaintiff moved to submit does not indicate when Dr. Kaplan last saw Plaintiff or provide
treatment records to support his findings. As will be discussed below, it is noteworthy that Dr.
Kaplan released Plaintiff to return to his work without restrictions in January of 2008 and there
is no evidence to show that he treated Plaintiff again until December of 2009. The Court finds
this evidence does not alter Plaintiff's condition as it existed at the time the ALJ made his
decision and, thus, is not material to Plaintiff's instant application. Thomas v. Sullivan, 928 F.2d
255 (8th Cir. 1991). However, the Court notes that this evidence might provide a basis for the
filing of a new application for benefits.
In order for new evidence to be submitted, Plaintiff must also show good cause for failing
to incorporate the evidence into the administrative proceeding. Plaintiff contends that good
cause exists for not including the records in the administrative proceeding because at the time
of the administrative hearing Plaintiff’s treating physicians were “unable to diagnose the cause
of Plaintiff’s condition;” and that Plaintiff “had called Dr. Kaplan’s office three times in order
to schedule a check-up and was still awaiting a return phone call.” While this might provide good
cause for the failure to incorporate the new evidence into the record at the prior hearing, Plaintiff,
who was represented by counsel during the administrative proceeding, did not address why he
failed to ask the Appeals Council to consider the new evidence as permitted by 20 C.F.R. §
404.1785. The Appeals Council denied Plaintiff’s request to review the ALJ decision on
February 19, 2010, two months after Plaintiff’s treating physician wrote the letter Plaintiff now
wishes to include as part of the record. Because Plaintiff failed to address why this evidence
was not submitted to the Appeals Council, the Court does not find Plaintiff established good
cause for failing to incorporate the evidence into the administrative proceeding. See Hepp, 511
F.3d at 808 (citing Hinchey v. Shalala, 29 F.3d 428, 433 (8th Cir.1994))(“Good cause does not
exist when the claimant had the opportunity to obtain the new evidence before the administrative
record closed but failed to do so without providing a sufficient explanation.”). Based on the
above, the Court will not consider this evidence when determining if substantial evidence
supports the ALJ’s determination.
Subjective Complaints and Credibility Analysis:
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily
activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may
not discount a claimant's subjective complaints solely because the medical evidence fails to
support them, an ALJ may discount those complaints where inconsistencies appear in the record
as a whole. Id. As the United States Court of Appeals for the Eighth Circuit observed, “Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
After reviewing the administrative record, it is clear that the ALJ properly evaluated
Plaintiff’s subjective complaints. Although Plaintiff contends that his impairments were
disabling, the evidence of record does not support this conclusion.
With regard to Plaintiff’s probable seizure disorder with symptoms of tingling, blackouts,
slurred speech and asphagia, the medical evidence reveals that Plaintiff sought treatment after
experiencing two blackouts in late 2005 and early 2006. Dr. Kaplan’s April of 2007 treatment
notes indicate that, while Plaintiff was not definitively diagnosed with a seizure disorder, the
seizure medication (Carbatrol) Plaintiff was prescribed to treat the spells was working, so Dr.
Kaplan believed Plaintiff’s spells were more than likely seizures. In July of 2007, Plaintiff
reported he was no longer having blackout spells, but he continued to have bouts of language
disturbance, so Dr. Kaplan increased his dosage of Carbatrol. By September of 2007, Plaintiff
reported only having a couple of intermittent episodes of language disturbance on the higher dose
of Carbatrol, but Plaintiff reported that this higher dose made him a little tired. Plaintiff’s
Carbatrol dosage was reduced. In January of 2008, Plaintiff reported he was still doing well and
Dr. Kaplan released Plaintiff to return to work without restrictions, but recommended Plaintiff
be cautious when using a forklift, hand jack, double reach or wrapping machine. Impairments
that are controllable or amenable to treatment do not support a finding of disability. Davidson
v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009). While Plaintiff indicated in reports that he
completed with his application for benefits that he could not be in the sunlight due to his
medication, with the exception of being tired on the higher dosage of the Carbatrol, there is no
evidence showing that Plaintiff reported negative side effects to his treating physicians.
Richmond v. Shalala, 23 F.3d 1441, 1443-1444 (8th Cir. 1994.). The Court finds substantial
evidence to support the ALJ determination that Plaintiff does not have a disabling seizure
With regard to Plaintiff’s alleged mental impairments, Plaintiff testified at the January
8, 2009 administrative hearing that he experienced anxiety and panic attacks. A review of the
medical evidence reveals that in March of 2007, Dr. Bonner noted Plaintiff had no unusual
anxiety or evidence of depression. The record fails to show that Plaintiff sought on-going and
consistent treatment for any mental health impairment. Gowell v. Apfel, 242 F.3d 793, 796 (8th
Cir. 2001) (holding that lack of evidence of ongoing counseling or psychiatric treatment for
depression weighs against plaintiff’s claim of disability). Furthermore, Dr. Brad Williams
opined that Plaintiff did not have a severe mental impairment that would last for twelve months.
Dr. Williams noted that while Dr. Bonner prescribed Alprazolam6 in March of 2007, at the same
clinic visit, Dr. Bonner found Plaintiff did not exhibit any unusual anxiety or evidence of
depression. The Court finds substantial evidence to support the ALJ’s determination that
Plaintiff does not have a disabling mental impairment.
With regard to Plaintiff’s headaches, the medical evidence does indicate Plaintiff reported
headaches to his treating physicians. On July 27, 2007, Dr. Kaplan completed a migraine
headache report indicating that Plaintiff experienced frontal headaches for which Plaintiff took
over-the-counter medication. Dr. Kaplan opined Plaintiff’s headaches did not cause any work
Alprazolam is used to treat anxiety and panic disorders. National Library of Medicine
available at http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684001.html
related limitations. The Court finds substantial evidence to support the ALJ’s determination that
Plaintiff’s headaches are not disabling.
Plaintiff's subjective complaints are also inconsistent with evidence regarding his daily
activities. At the administrative hearing, Plaintiff testified that he worked part-time at a
convenience store as a cashier, cook and stocker. (Tr. 31). Plaintiff testified that he worked
Monday through Friday, from 5:00 AM until around 10:30 AM. Plaintiff testified that he was
also able to drive short distances, cook, clean, paint, mow and do laundry. (Tr. 30, 32). Plaintiff
also indicated that he liked to work out in his shop building bird houses and helping his dad with
little construction projects. (Tr. 33). In a Function Report dated May 31, 2007, Plaintiff
indicated that he spent time four-wheeling, fishing, canoeing and camping with his son, daughter
and niece. (Tr. 137). This level of activity belies Plaintiff’s complaints of pain and limitation
and the Eighth Circuit has consistently held that the ability to perform such activities contradicts
a Plaintiff’s subjective allegations of disabling pain. See Hutton v. Apfel, 175 F.3d 651, 654-655
(8th Cir. 1999) (holding ALJ’s rejection of claimant’s application was supported by substantial
evidence where daily activities– making breakfast, washing dishes and clothes, visiting friends,
watching television and driving-were inconsistent with claim of total disability).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, he has not
established that he is unable to engage in any 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). Neither the medical evidence nor the reports concerning his
daily activities support Plaintiff’s contention of total disability. Accordingly, we conclude that
substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective complaints were
not totally credible.
We next turn to the ALJ’s assessment of Plaintiff’s RFC. RFC is the most a person can
do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using all relevant
evidence in the record. Id. This includes medical records, observations of treating physicians and
others, and the claimant’s own descriptions of his limitations. Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
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). “[T]he ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In the present case, the ALJ considered the medical assessments of examining agency
medical consultants, Plaintiff’s subjective complaints, and his medical records when he
determined Plaintiff could perform work at all exertional levels with some non-exertional
limitations. Plaintiff's capacity to perform this level of work is supported by the fact that
Plaintiff's examining physicians placed no restrictions on his activities that would preclude
performing the RFC determined. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack
of physician-imposed restrictions militates against a finding of total disability). Based on the
record as a whole, we find substantial evidence to support the ALJ’s RFC determination.
Hypothetical Question to the Vocational Expert:
We now look to the ALJ's determination that Plaintiff could perform substantial gainful
employment within the national economy. We find that the hypothetical the ALJ posed to the
vocational expert fully set forth the impairments which the ALJ accepted as true and which were
supported by the record as a whole. See Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997);
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). Accordingly, we find that the vocational
expert's testimony constitutes substantial evidence supporting the ALJ's conclusion that Plaintiff
is not disabled as he is able to perform work as a hand packager, a small products assembler and
a machine tender. See Pickney, 96 F.3d at 296 (testimony from vocational expert based on
properly phrased hypothetical question constitutes substantial evidence).
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
DATED this 2nd day of May.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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