Hubbard v. Astrue

Filing 24

MEMORANDUM AND ORDER re: 21 SOCIAL SECURITY CROSS BRIEF re 16 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin, 16 SOCIAL SECURITY BRIEF filed by Plaintiff Jaime Hubbard motion is DENIED. IT IS HEREBY ORDERED that the relief so ught by Plaintiff in her Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 16. IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Opinion. Signed by Magistrate Judge Noelle C. Collins on 7/21/14. (CSG) Modified on 7/22/2014 (CSG).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JAMIE D. HUBBARD,
Plaintiff,
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.1

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Case No. 1:12CV165NCC

MEMORANDUM AND OPINION
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Jamie D. Hubbard (Plaintiff) for Supplemental
Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a
brief in support of the Complaint. Doc. 16. Defendant has filed a brief in support of the Answer.
Doc. 21.

The parties have consented to the jurisdiction of the undersigned United States

Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). Doc. 23.
I.
PROCEDURAL HISTORY
Plaintiff filed her application for SSI alleging a disability onset date of July 6, 1995. Tr.
172-76. Plaintiff’s application was denied and she requested a hearing before an Administrative
Law Judge (ALJ). Tr. 91-98. Plaintiff amended her alleged onset date to September 5, 2008.
Tr. 198. After both a hearing and a supplemental hearing, the ALJ found Plaintiff not disabled
by decision dated January 28, 2011. Tr. 11-19. Plaintiff filed a request for review with the
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Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she should be substituted for
Michael J. Astrue as the defendant. No further action need be taken to continue this suit by
reason of the last sentence of § 205(g) of the Act.
1

Appeals Council, which denied Plaintiff’s request. Tr. 1-7. As such, the ALJ’s decision stands
as the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. '' 416.920, 404.1529. A>If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.=@ Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in Asubstantial gainful activity@ to qualify for disability benefits.
20 C.F.R. '' 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. '' 416.920(c), 404.1520(c). The Social Security Act defines Asevere impairment@ as Aany
impairment or combination of impairments which significantly limits [claimant=s] physical or
mental ability to do basic work activities.@ Id. AThe sequential evaluation process may be
terminated at step two only when the claimant=s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.@ Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. '' 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant=s age,
education, or work history. See id.

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Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. '' 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her Residual Functional Capacity (ARFC@). See Steed v. Astrue, 524 F.3d 872,
874 n.3 (8th Cir. 2008) (AThrough step four of this analysis, the claimant has the burden of
showing that she is disabled.@); Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363
F.3d 731, 737 (8th Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The
ALJ will review a claimant=s RFC and the physical and mental demands of the work the claimant
has done in the past. 20 C.F.R. ' 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. '' 416.920(g), 404.1520(g).

At this fifth step of the sequential analysis, the

Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant=s RFC. See Steed, 524 F.3d at 874
n.3; Young, 221 F.3d at 1069 n.5. If the claimant meets these standards, the ALJ will find the
claimant to be disabled. AThe ultimate burden of persuasion to prove disability, however,
remains with the claimant.@ Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004) (AThe burden of persuasion to prove disability and to demonstrate RFC
remains on the claimant, even when the burden of production shifts to the Commissioner at step
five.@); Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004) (A[T]he burden of production
shifts to the Commissioner at step five to submit evidence of other work in the national economy
that [the claimant] could perform, given her RFC.@). Even if a court finds that there is a
preponderance of the evidence against the ALJ=s decision, that decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).

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ASubstantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner=s conclusion.@ Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland
v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the
weight of the evidence and it allows for the possibility of drawing
two inconsistent conclusions, thus it embodies a zone of choice
within which the Secretary may decide to grant or deny benefits
without being subject to reversal on appeal.

See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (A[W]e may not reverse merely
because substantial evidence exists for the opposite decision.@) (quoting Johnson v. Chater, 87
F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004)
(A[R]eview of the Commissioner=s final decision is deferential.@).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383, 384 (8th
Cir. 1992). Instead, the district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ=s
conclusion. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the
fact-finder. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). See also Onstead v. Sullivan,
962 F.2d 803, 804 (8th Cir. 1992) (holding that an ALJ=s decision is conclusive upon a reviewing
court if it is supported by Asubstantial evidence@). Thus, an administrative decision which is
supported by substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would have decided
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differently. See Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390 F.3d at 589; Nevland
v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir.
1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner=s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant=s treating physicians;
(4) The subjective complaints of pain and description of the claimant=s
physical activity and impairment;
(5) The corroboration by third parties of the claimant=s physical
impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant=s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec=y of Dep=t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ=s decision must comply Awith the relevant legal requirements.@
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.@ 42 U.S.C. ' 416(i)(1)(A); 42 U.S.C. ' 423(d)(1)(A). AWhile the
claimant has the burden of proving that the disability results from a medically determinable
physical or mental impairment, direct medical evidence of the cause and effect relationship
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between the impairment and the degree of claimant=s subjective complaints need not be
produced.@ Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When evaluating evidence
of pain, the ALJ must consider:
(1) the claimant=s daily activities;
(2) the subjective evidence of the duration, frequency, and
intensity of the claimant=s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication;
and
(5) the claimant=s functional restrictions.
Baker v. Sec=y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992); Polaski, 739 F.2d
at 1322. The absence of objective medical evidence is just one factor to be considered in
evaluating the plaintiff=s credibility. Id. The ALJ must also consider the plaintiff=s prior work
record, observations by third parties and treating and examining doctors, as well as the plaintiff=s
appearance and demeanor at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at
1186.
The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the plaintiff=s complaints. See Guilliams, 393 F.3d at 801;
Masterson, 363 F.3d at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995). It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he considered all of the evidence.
See Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec=y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, Aneed not explicitly discuss each
Polaski factor.@ Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See also Steed,
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524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ need only
acknowledge and consider those factors. See id.

Although credibility determinations are

primarily for the ALJ and not the court, the ALJ=s credibility assessment must be based on
substantial evidence. See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v.
Heckler, 780 F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20 C.F.R. '
404.1545(a)(1), and includes an assessment of physical abilities and mental impairments. 20
C.F.R. ' 404.1545(b)-(e). The Commissioner must show that a claimant who cannot perform his
or her past relevant work can perform other work which exists in the national economy. See
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy
v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first
prove that the claimant retains the RFC to perform other kinds of work. See Goff, 421 F.3d at
790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by substantial evidence.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983). Second, once the plaintiff=s capabilities
are established, the Commissioner has the burden of demonstrating that there are jobs available
in the national economy that can realistically be performed by someone with the plaintiff=s
qualifications and capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner=s burden, the testimony of a vocational expert (AVE@) may
be used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff=s
limitations, but only those which he finds credible. See Goff, 421 F.3d at 794 (A[T]he ALJ
properly included only those limitations supported by the record as a whole in the
hypothetical.@); Rautio, 862 F.2d at 180.

Use of the Medical-Vocational Guidelines is

appropriate if the ALJ discredits the plaintiff=s subjective complaints of pain for legally sufficient

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reasons. See Baker v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902
F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the Commissioner’s
final determination that Plaintiff was not disabled. See Onstead, 962 F.2d at 804. Thus, even if
there is substantial evidence that would support a decision opposite to that of the Commissioner,
the court must affirm her decision as long as there is substantial evidence in favor of the
Commissioner’s position. See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff was born in 1979 and has a high school education. She has one child, a daughter
who was five years old as of July 2010. She testified she was sexually abused when she was
fourteen years old; she was raped as a teenager; she had problems with nightmares; she smoked
marijuana when someone else had it; the day prior to the hearing she smoked marijuana; and she
enjoyed reading. Tr. 31-36. Plaintiff claimed her physical problems included diabetes, seizures,
headaches, muscle spasms, back pain, chronic obstructive pulmonary disease (COPDP), and
chronic bronchitis, and that she had psychological conditions.
At the supplemental hearing, the ALJ called Anne E. Winkler, M.D., and Karyn Perry,
Ph.D., as medical experts, and Darrell W. Taylor, Ph.D., a VE. The ALJ found Plaintiff had not
engaged in substantial gainful activity since September 5, 2008, her amended onset date; she had
the severe impairments of diabetes, seizures, headaches, back pain, and mood and anxiety
disorders; and she did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. The ALJ further found Plaintiff had the RFC to lift 20
pounds occasionally and 10 pounds frequently; she could sit, stand, and walk for six hours in an
8-hour workday; she could not climb ladders, ropes or scaffolding; she could no more than
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occasionally climb stairs; she must avoid unprotected heights; and she was limited to simple,
repetitive tasks with limited interactions with supervisors and coworkers and a low stress work
environment. The ALJ concluded that there was work in the national economy which a person
of Plaintiff’s age with Plaintiff’s education, work experience, and RFC could perform, and that,
therefore, Plaintiff was not disabled.
Plaintiff argues that the ALJ’s decision is not based on substantial evidence because she
met the listings for peripheral neuropathy and diabetes; the ALJ incorrectly relied on Plaintiff’s
failure to comply with prescribed medical treatment for diabetes when finding her not disabled;
the ALJ failed to consider evidence regarding the combination of Plaintiff’s impairments; the
ALJ failed to submit a hypothetical to the VE which included the combination of Plaintiff’s
limitations and impairments; witnesses at the supplemental hearing did not have the benefit of
considering the opinion and records of Shahid K. Choudhary, M.D., who examined Plaintiff after
the hearing; and the ALJ failed to fully develop the record.
A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation

of Plaintiff=s credibility was essential to the ALJ=s determination of other issues, including
Plaintiff=s RFC. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The plaintiff] fails
to recognize that the ALJ's determination regarding her RFC was influenced by his determination
that her allegations were not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.
2005)); 20 C.F.R. '' 404.1545, 416.945 (2010). As set forth more fully above, the ALJ=s
credibility findings should be affirmed if they are supported by substantial evidence on the
record as a whole; a court cannot substitute its judgment for that of the ALJ. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.

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To the extent that the ALJ did not specifically cite Polaski, other case law, and/or Regulations
relevant to a consideration of Plaintiff=s credibility, this is not necessarily a basis to set aside an
ALJ=s decision where the decision is supported by substantial evidence. Randolph v. Barnhart,
386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000);
Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275
(8th Cir. 1995).
Additionally, an ALJ need not methodically discuss each Polaski factor if the factors are
acknowledged and examined prior to making a credibility determination; where adequately
explained and supported, credibility findings are for the ALJ to make. See Lowe v. Apfel, 226
F.3d 969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004)
(AThe ALJ is not required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87 F.3d 963, 966
(8th Cir. 1996). In any case, A[t]he credibility of a claimant=s subjective testimony is primarily
for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir.
2001). AIf an ALJ explicitly discredits the claimant=s testimony and gives good reason for doing
so, [a court] will normally defer to the ALJ=s credibility determination.@ Gregg v. Barnhart, 354
F.3d 710, 714 (8th Cir. 2003). For the following reasons, the court finds that the reasons offered
by the ALJ in support of his credibility determination are based on substantial evidence.
First, the ALJ considered that Plaintiff did not require as many emergency room visits as
her allegations regarding difficulty in controlling her diabetes suggested. Tr. 17. The ALJ also
noted that, when Plaintiff went to the emergency room in 2008, she was discharged in less than
one day. Tr. 15, 309. A lack of regular treatment for an alleged disabling condition detracts
from a claimant=s credibility. See Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (citing

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Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990)); Comstock v. Chater, 91 F.3d 1143, 114646 (8th Cir. 1996) (citing Benskin, 830 F.2d at 884); Polaski, 739 F.2d at 1322.
Second, the ALJ considered that although Plaintiff described difficulties in performing
daily activities, she stated, in a function report, that she prepared meals, drove, shopped, and paid
bills. Tr. 17. The court notes Plaintiff also reported that she took care of her daughter and
children; she could do laundry and dishes; she would go outside every day, unless she was “real
sick”; and she could go out alone. Tr. 225-30. As considered by the ALJ, Plaintiff told
consultive examiner Jonathan D. Rosenboom, Psy.D., when he examined her, on December 12,
2008, that her daily activities centered around caring for her three-year old daughter; she kept her
and her daughter’s area of the house clean, although her mother, with whom she lived, employed
a cleaning lady; and she took care of her personal hygiene on a routine and daily basis. Tr. 34950. Also, in August and September 2010, Plaintiff told Dr. Rosenboom that she cleaned, did
laundry, and grocery shopped. Tr. 464-78.
While the undersigned appreciates that a claimant need not be bedridden before she can
be determined to be disabled, Plaintiff's daily activities can nonetheless be seen as inconsistent
with her subjective complaints of a disabling impairment and may be considered in judging the
credibility of complaints. See Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (ALJ
properly considered that plaintiff watched television, read, drove, and attended church upon
concluding that subjective complaints of pain were not credible); Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001); Onstead, 962 F.2d at 805. Indeed, the Eighth Circuit holds that
allegations of disabling Apain may be discredited by evidence of daily activities inconsistent with
such allegations.@ Davis v. Apfel, 239 F.3d 962, 967 (8th Cir. 2001). AInconsistencies between
[a claimant=s] subjective complaints and [his] activities diminish [his] credibility.@ Goff, 421

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F.3d at 792. See also Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001); Nguyen v. Chater,
75 F.3d 429, 439-41 (8th Cir. 1996) (holding that a claimant=s daily activities, including visiting
neighbors, cooking, doing laundry, and attending church, were incompatible with disabling pain
and affirming denial of benefits at the second step of the analysis).
Third, although Plaintiff alleged a mental impairment, she reported she spent time with
others, including “inperson visiting”; she read; she could pay bills, count change, handle a
savings account, and use a check book, although her mother helped her manage money; she did
not have any problems getting along with family, friends and neighbors; and she could pay
attention “pretty good” and could follow written instructions “good.” Tr. 225-30. She also told
Dr. Rosenboom that she read, watched television, took care of her personal hygiene, including
bathing and changing her clothing twice daily. Tr. 466.
Fourth, the ALJ considered that the medical records failed to support Plaintiff’s claims
regarding the severity of her impairments. Tr. 17. See Constock v. Chater, 91 F.3d 1143, 1147
(8th Cir. 1996) (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) (ALJ properly
discounted a claimant=s complaints of pain when the medical evidence failed to establish a
significant back problem); Orrick v. Sullivan, 966 F.2d 368, 372 (8th Cir. 1992) (ALJ may
discredit a claimant=s subjective complaints where there are inconsistencies in the record; the
ALJ may give more weight to the medical records than to a claimant=s testimony); Russell v.
Sullivan, 950 F.2d 542, 545 (8th Cir. 1991).

As for her diabetes, the ALJ noted that

examinations did not reveal significant loss of sensation due to diabetic neuropathy. Tr. 17. As
considered by the ALJ, D.K. Varma, M.D., who saw Plaintiff for a variety of complaints through
August 2008, rarely indicated she had significant signs of complications related to diabetes. Tr.
288-300. As also considered by the ALJ, although Plaintiff went to the Samuel Medical Clinic

12

for carious complaints, and it was noted at various times that she had blood sugar problems, the
health care professionals did not observe she had signs of diabetic complications. Tr. 16, 37683.
As for her mental impairments, the ALJ considered records failed to show Plaintiff had
difficulty interacting with others. Tr. 17. As noted by the ALJ, Dr. Varma reported, in 2008,
that Plaintiff had normal mood, was oriented, and good judgment and memory. Tr. 26, 288, 291.
Also, Dr. Rosenboom reported, in December 2008, that Plaintiff made adequate eye contact; she
was an articulate speaker, whose range of vocabulary was not limited and whose grammar was
good; her thoughts flowed evenly, logically, and in a goal-directed manner; she was alert and
attentive; her concentration and mental control were unimpaired when she completed the Serial
Sevens task without error; her delayed auditory recall was slightly impaired, but this was likely
due to anxiety during the interview; and she denied hallucinations but stated she had panic
attacks.

Dr. Rosenboom opined in December 2008, that Plaintiff’s ability to understand,

remember, and carry out instructions and her ability to respond appropriately to work
supervisors, coworkers, and work stressors was not impaired by her mental disorder. Tr. 349-51.
In September 2010, Dr. Rosenboom reported, pursuant to examination, that Plaintiff did not
evidence “any signs of a formal thought disorder”; she was alert and attentive, although she was
passive and socially avoidant; and testing showed Plaintiff had a full scale IQ of 84, placing her
in the low average range.

Dr. Rosenboom opined that Plaintiff’s ability to understand,

remember, and carry out instructions was not impaired by her mental disorders; her ability to
respond appropriately to work stressors was moderately impaired by her mental disorders; she
had mild limitations in regard to interacting appropriately with the public, supervisors and
coworkers; and Plaintiff did have the capacity to manage her finances. Tr. 466-74. A Social

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Security interviewer noted that, during an interview, Plaintiff did not have difficulties in
understanding, coherency, concentrating, talking, or answering; and she was pleasant and polite,
well-prepared for the interview, and was able to answer all questions without difficulty. Tr. 214.
As for Plaintiff’s claim of exertional limitations, Dr. Varma repeatedly noted, in 2008, in
regard to Plaintiff’s musculoskeletal system, that Plaintiff had full range of motion, and no
tenderness or edema. Tr. 288, 291, 296. In January 2009, Plaintiff’s neurological examination
was “non-focal” and she had no edema in her extremities. Tr. 449. March and April 2010
records from the Ripley County Family Clinic reflect that Plaintiff had normal gait and posture.
Tr. 386-87. K.A. Schisler, D.O., who examined Plaintiff in August 2010, reported that all of
Plaintiff’s range of motions were within normal limits; she had no difficulty getting on and off
the exam table; she could squat and get back up; her bilateral muscle strength in both upper and
lower extremities was 5/5; Plaintiff had no muscle atrophy; she had no neurologic deficits in fine
finger movement; her gait was within normal limits; her reflexes were 2+, bilaterally, in the
lower and upper extremities; Plaintiff’s lungs were clear, with no wheezes or rales; her neck was
supple; and her abdomen was soft and nontender. Tr. 454-55. Dr. Schisler opined that Plaintiff
could frequently lift 20 pounds, and occasionally lift up to 50 pounds; she could sit for 30-45
minutes, stand 15 minutes, and walk 20 minutes at a time; in an 8-hour workday, Plaintiff could
sit a total of 4 hours and stand and walk a total of 2 hours each; she could continually use her
hands to reach, handle, finger, feel, and push/pull; she could frequently use foot controls; she
could never climb ladders or balance; she could frequently stoop, kneel, crouch, and crawl; she
could never tolerate unprotected heights or moving mechanical parts; she could frequently
tolerate exposure to humidity, extreme cold and heat, and vibrations; and she could sort, handle,

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and use paper/files. Tr. 45-63. Even Dr. Choudhary, upon whose opinion Plaintiff heavily
relies, reported that Plaintiff’s motor strength was intact and that her gait was normal. Tr. 480.
Fifth, when Plaintiff was hospitalized for diabetic ketoacidosis, in January 2009, it was
noted she was noncompliant with her medications and diet. Tr. 449. See Eichelberger, 390 F.3d
at 589 (ALJ properly considered that plaintiff cancelled several physical therapy appointments
and that no physician imposed any work-related restrictions on her) (citing Brown v. Chater, 87
F.3d 963, 965 (8th Cir. 1996) (claimant=s failure to comply with prescribed medical treatment
and lack of significant medical restrictions is inconsistent with complaints of disabling pain). As
for Plaintiff’s argument that her mental impairment should excuse her noncompliance, simply
having a mental disorder does not excuse noncompliance. See Wildman v. Astrue, 596 F.3d 959,
966 (8th Cir. 2010) (noting noncompliant claimant suffered from depression, not schizoaffective
disorder).

In any case, Plaintiff has suggested no evidence to support her claim that her

depression prevented her from understanding the necessity to maintain proper diet and to take
medications as prescribed.
Sixth, when Plaintiff was hospitalized for diabetic ketoacidosis, in January 2009, she got
better with IV fluids and an insulin drip. Tr. 449. See Brown v. Astrue, 611 F.3d 941, 955 (8th
Cir. 2010) (conditions which can be controlled by treatment are not disabling); Davidson v.
Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir.
2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (if impairments can be controlled by
treatment, they cannot be considered disabling).
Seventh, although Plaintiff argues she had multiple hospitalizations for diabetic
ketoacidosis and although January 2009 hospital discharge records state Plaintiff “had multiple
admissions in the past for diabetic ketoacidosis (Tr. 449), the record from the relevant period

15

reflects, as discussed above, only one such instance. When she was hospitalized at the time of
the second hearing, it was for pneumonia, not ketoacidosis. Tr. 42, 46.
B.

Plaintiff’s Failure to Meet Listing 9.08 or Listing 11.14:
Plaintiff argues the ALJ erred in failing to find she met or medically equaled Listing

9.08, the prior listing for diabetes, or Listing 11.14, the listing for peripheral neuropathy.2 As
stated by the Eighth Circuit:
The listing for presumptively disabling diabetes requires a showing of a diabetes
diagnosis with A[n]europathy demonstrated by significant and persistent
disorganization of motor function in two extremities resulting in sustained
disturbance of gross and dexterous movements, or gait and station.@ 20 C.F.R. pt.
404, subpt. P, app. 1 ' 9.08(A). Peripheral neuropathy is presumptively disabling
as a neurological disorder with a showing of significant and persistent
disorganization of motor function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and station. See id. '
11.14.
Cunningham v. Apfel, 222 F.3d 496, 502 n.8 (8th Cir. 2000).
Additionally, to meet or medically equal the listing for diabetes, a claimant had to meet
the following criteria:
Diabetes mellitus. With:
A. Neuropathy demonstrated by significant and persistent disorganization of
motor function in two extremities resulting in sustained disturbance of gross and
dexterous movements, or gait and station (see 11.00C); or
B. Acidosis occurring at least on the average of once every 2 months documented
by appropriate blood chemical tests (pH or pCO2 or bicarbonate levels); or
C. Retinitis proliferans; evaluate the visual impairment under the criteria in 2.02,
2.03, or 2.04.
20 C.F.R. Part 404, Subpart P, Appendix 1 § 9.08.

2

The individual listing for diabetes was rescinded, effective June 7, 2011. See 76 Fed. Reg.
19692 (Apr. 8, 2011).
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Upon finding Plaintiff did not meet Listing 9.08, the ALJ found the medical evidence
failed to show the severity of signs and symptoms required. Tr. 13. Indeed, as required by
Listing 9.08, there was no evidence indicating Plaintiff had episodes of acidosis at least every
two months; and there was no evidence of neuropathy resulting in significant and persistent
disorganization of motor function in two extremities resulting in sustained disturbance of gross
and dexterous movements, or gait and station. Notably, when Plaintiff was hospitalized for a
urinary tract infection in October 2007, she had no neurological deficits. Tr. 452. When she was
hospitalized, in January 209, for ketoacidosis, Plaintiff’s neurological examination was “nonfocal.” Tr. 449. In August 2010, neurological examination showed Plaintiff had normal gait,
reflexes, and was able to heel/toe tandem walk, stand on her toes, and stand on her heels. Tr.
455. In January 2011, although Dr. Choudhary reported Plaintiff had peripheral neuropathy, he
further reported that she had only “mild” weakness of the lower extremities; her gait was normal;
and there was no evidence of lumbar radiculopathy on nerve conduction studies. At that point,
Dr. Choudhary started Plaintiff on Neurontin, and recommended she have good control of her
blood sugars. Tr. 479-80. The court finds, therefore, that the ALJ’s determination that Plaintiff
did not meet or medically equal Listing 9.08 is supported by substantial evidence.
As for Plaintiff’s meeting Listing 11.14, as discussed above, there was no evidence that
Plaintiff’s peripheral neuropathy resulted in sustained disturbance of gross and dexterous
movements, or gait and station. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.04. The court
finds, therefore, that the ALJ’s determination that Plaintiff did not meet or medically equal
Listing 11.14 is supported by substantial evidence.

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C.

Plaintiff’s RFC:
Plaintiff argues the ALJ did not consider the combined effects of her impairments when

determining her RFC. The court finds, however, that the record sufficiently demonstrates that
the ALJ did so prior to determining Plaintiff’s RFC.

In this regard, the ALJ separately

addressed each of Plaintiff’s alleged impairments, including her diabetes, back pain, headaches,
seizure disorder, and mental impairments, and considered the relevant medical records,
Plaintiff’s testimony, and other evidence of record. See Martise, 641 F.3d at 924 (ALJ did not
fail to consider the combination of claimant’s impairments where he fully summarized all
medical records, discussed each of her alleged impairments, and expressly found that claimant
did not have impairment or combination of impairments that met or medically equaled any
listed impairment).

As discussed above in regard to Plaintiff’s credibility and the ALJ’s

consideration of Listings 9.08 and 11.l4, the ALJ considered the signs and symptoms of
Plaintiff’s alleged disabling conditions, including the medical records and Plaintiff’s selfreporting of her symptoms. Tr. 13. He further considered the extent to which Plaintiff’s
symptoms could reasonably be consistent with the objective medical evidence as well as
opinion evidence. Only after doing so did the ALJ determine Plaintiff’s RFC.
Although Plaintiff argues the ALJ did not consider Dr. Choudhary’s January 26, 2011
report when determining her RFC, the record does not reflect the ALJ received this report prior
to issuing his decision. Indeed, at Plaintiff’s second hearing, the ALJ refused to hold the record
open until Plaintiff submitted a report from Dr. Choudhary, over two years had passed since
Plaintiff first requested a hearing and approximately six months had transpired from Plaintiff’s
first hearing. Thus, the court finds the ALJ did not abuse his discretion by refusing to keep the
record open. See 20 C.F.R. 416.1444 (ALJ has discretion whether to hold record open for

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further proceedings). Even if the ALJ should have held the record open, any such error is
harmless, as the Appeals Council did consider Dr. Choudhary’s report, and determined that the
report did not provide a basis for changing the ALJ’s decision. Notably, as discussed above, Dr.
Choudhary reported only that Plaintiff had minimal peripheral neuropathy, and it was not until
Plaintiff saw Dr. Choudhary that she was prescribed Neurontin. See Hepp v. Astrue, 511 F.3d
798, 806 (8th Cir. 2008) (ALJ’s deficiency did not require reversal since it had no bearing on
outcome).
To the extent Plaintiff argues the ALJ did not consider the history of her mental illnesses
when determining her RFC, the ALJ did restrict Plaintiff’s RFC so that she was limited to simple
repetitive tasks with limited interaction with others, as well low stress situations. The ALJ did
consider, in detail, medical records relevant to Plaintiff’s mental impairments, including reports
of treating, examining and consulting doctors. Upon doing so he was not required to rely
entirely upon the opinion of a single source. Rather, consistent with the case law, the ALJ
considered the record as a whole. See Martise, 641 F.3d 927 (“[T]he ALJ [was] not required to
rely entirely on a particular physician’s opinion or choose between the opinions [of] any of the
claimant’s physician’s opinions.”). Even if the ALJ did not address every specific entry into
Plaintiff’s mental health records, the ALJ’s failure to do so does not indicate that he failed to
consider such evidence. See Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995). See also
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (AThe fact that the ALJ did not elaborate on
this conclusion does not require reversal, because the record supports her overall conclusion.@)
(citations omitted). In any case, the ALJ was not required to discuss every piece of evidence.
See Wildman, 596 F.3d at 966 (although ALJ is required to fully develop record, he is not
required to discuss every piece of evidence); Wheeler v. Apfel, 224 F.3d 891, 896 n.3 (8th Cir.

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2000) (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (ALJ is not required to discuss
every piece of evidence submitted; AALJ=s failure to cite specific evidence does not indicate that
such evidence was not considered.@).
Although Plaintiff argues the ALJ should have developed the record further, the
Commissioner did order consultive examinations and Dr. Winkler and Dr. Perry were called to
testify at the second hearing. See Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (citing
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir.1986)) (AALJ is required to order medical
examinations and tests only if the medical records presented to [her] do not give sufficient
medical evidence to determine whether the claimant is disabled.@).

Moreover, there was

sufficient evidence for the ALJ to make a determination as to whether Plaintiff was disabled.
See Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974) (ALJ need not develop record
further where it is Asufficiently clear to make a fair determination as to whether the claimant is
disabled or not”). The court finds that Plaintiff has not demonstrated that Aa crucial issue [was]
undeveloped” or that the ALJ’s failure to develop the record even further than he did was
prejudicial. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). As such, Plaintiff’s argument
that the ALJ failed to sufficiently develop the record is without merit.
In conclusion, the court finds that the ALJ’s RFC determination is based on substantial
evidence, and that it is consistent with the Regulations and case law, and that all arguments made
by Plaintiff to the contrary are without merit.
D.

Testimony of VE:
The ALJ posed a hypothetical to a VE which included the RFC which the ALJ assigned

to Plaintiff; it included all of Plaintiff’s limitations which the ALJ found credible. The VE
testified that there was work in the national economy which a person of Plaintiff’s age and with

20

her education and RFC could perform. Thus, the ALJ found Plaintiff not disabled. Although
Plaintiff argues the hypothetical posed to the VE was insufficient, the ALJ was only required to
include limitations in the hypothetical which he found credible. Thus, the hypothetical submitted
to the VE was properly formulated. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)
(ALJ's hypothetical question to VE needs to include only those impairments that ALJ finds are
substantially supported by record as a whole); Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir.
2005) (proper hypotheticals set forth impairments supported by substantial evidence and
accepted as true by ALJ). Thus, the ALJ was not required to include further limitations as
suggested by Plaintiff. See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (ALJ need not
include additional complaints in hypothetical not supported by substantial evidence); Hunt v.
Massanari, 250 F.3d 622, 625 (8th Cir. 2001). Finally, the VE’s testimony that there was work
in the national economy which Plaintiff could perform provided substantial evidence to support
the ALJ’s determination that Plaintiff was not disabled. See Martise, 641 F.3d at 927 (ABased on
our previous conclusion ... that >the ALJ's findings of [the claimant=s] RFC are supported by
substantial evidence,= we hold that >[t]he hypothetical question was therefore proper, and the
VE's answer constituted substantial evidence supporting the Commissioner=s denial of
benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Robson v. Astrue,
526 F.3d 389, 392 (8th Cir. 2008) (VE=s testimony is substantial evidence when it is based on an
accurately phrased hypothetical capturing concrete consequences of claimant=s limitations);
Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990).
IV.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports Commissioner’s decision that Plaintiff is not disabled.
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Accordingly,
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint is DENIED; Docs. 1, 16.
IT IS ORDERED that a separate judgment be entered incorporating this Memorandum
and Opinion.

Dated this 21st day of July, 2014.

/s/Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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