Fields v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Commissioner's decision is affirmed, and plaintiff's Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 12/26/2012. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICKY L. FIELDS,
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
Case No. 2:11CV35 FRB
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Ricky L.
Fields’s appeal of an adverse decision of the Social Security
All matters are pending before the undersigned
United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c).
On September 19, 2007, plaintiff filed an application for
Disability Insurance Benefits (also “DIB”) pursuant to Title II,
and/or for Supplemental Security Income (also “SSI”) pursuant to
Title XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.
(Administrative Transcript (“Tr.”) 16, 78, 84).
February 1, 2007.
Plaintiff’s applications were initially
denied, and he requested a hearing before an Administrative Law
Judge (also “ALJ”), which was held on September 16, 2008.
On January 27, 2009, the ALJ issued his decision denying
Plaintiff subsequently filed a Request For Review of
Hearing Decision/Order with defendant agency’s Appeals Council,
seeking review of the ALJ’s decision.
On March 14, 2011, the
Appeals Council denied plaintiff’s request to review the ALJ’s
The ALJ’s decision thus stands as the
Commissioner’s final decision subject to review by this Court.
U.S.C. § 405(g).
Evidence Before the ALJ
During the administrative hearing, plaintiff, age 49,
testified that he was right-handed, single, and lived alone.
He testified that he was five feet six inches tall, and
weighed 160 pounds.
When plaintiff was asked whether
160 pounds was within the normal range for him, plaintiff stated:
I’m gaining weight now.
Ever since I got to feeling a
little bit better I kind of gained a little, few pounds.” (Id.)
Plaintiff testified that he had completed high school,
during which he was enrolled in regular education classes, and was
able to read, write and perform arithmetic.
plaintiff suffered a crush injury to the small finger of his left
hand that necessitated amputation of the digit.
Plaintiff testified that he had suffered a blood clot in
his left arm, which had caused his arm to become numb and cold.
He underwent surgery to remove the clot.
Plaintiff also suffered a blood clot in his left leg, which was
also treated surgically. (Tr. 36). In February of 2008, plaintiff
underwent cardiac bypass surgery, and at the time of the hearing
was receiving continued follow-up care.
When plaintiff was asked where he currently had regular
pain, plaintiff testified that he had constant pain in his left
foot which he described as a burning sensation like an electric
shock, and which was worsened by standing, walking, or sitting too
Plaintiff testified that, other than his foot, he
had no other pain in his left leg.
Regarding his right leg, plaintiff testified that, when
he walked any distance, “it gets like a cramp in the calf, walk or
stand too long.”
Plaintiff testified that he did not have
any problems with his left arm.
He testified that he does
not have any chest pain or shortness of breath.
testified that, on a good day, he spent nine hours sitting in a
recliner to alleviate his lower extremity symptoms.
testified that, on a bad day, he spent most of the day in the
Plaintiff testified that pain in his left leg woke him
from sleep, and that it was uncomfortable for him to drive farther
than 18 miles due to pain in his left foot which he rated as a five
on a one-to-ten scale.
(Tr. 38-39, 41-42).
He testified that this
pain level was what he experienced when taking his medication, and
that without medication, his pain would be a ten on a one-to-ten
approximately one block, and could stand in one place and sit for
ten minutes before experiencing pain in his leg.
Plaintiff testified that he could lift ten pounds but not 25
because it was “just too uncomfortable.”
Plaintiff described having problems with alcohol in the
past, and testified that he still drank six beers per week.
He testified that he used to smoke three packs of cigarettes
per day, but now smoked less than one pack per day.
Records from University Hospital & Clinics, University of
plaintiff presented to the Emergency Room on March 19, 2006 after
sustaining a crush injury to his left small finger while working
Plaintiff’s left small finger was
amputated in the Emergency Room.
On July 26, 2006, plaintiff was
released to return to work with no restrictions.
On April 9, 2007, plaintiff presented to the Emergency
Room with complaints of left foot pain and numbness.
He was diagnosed with acute ischemia of the left leg, was
hospitalized, and underwent a thromboembolectomy (surgical removal
of a blood clot).
(Tr. 186-87, 190-91, 213-15).
While in the
hospital, plaintiff’s clinical course was complicated by symptoms
attributed to alcohol withdrawal.
On April 11,
2007, it was noted that plaintiff was not well oriented to place
and had only a vague understanding of his present illness.
Plaintiff reported drinking six beers per day, and using
He reported working at a gas station and
Upon examination, plaintiff was noted to be
restless, and to have tremors and slurred speech.
April 12, 2007, it was noted that plaintiff was more agitated, and
that he “wanted to be untied and go home.”
noted that plaintiff was aggressive and used profanity, exhibited
tremors, and was not oriented to time or place.
noted that this was plaintiff’s third day without beer. (Tr. 210).
On April 16, 2007, plaintiff’s condition was improved, he stated
that he felt that alcohol may have contributed to his leg condition
rehabilitation to do so.
An April 26, 2007 Arterial
Doppler study revealed normal findings in plaintiff’s legs.
Hospital and reported having passed black stools.
It was noted that he was taking iron tablets, Percocet,1 Colace,2
and aspirin, and that he smoked two packs of cigarettes per day.
(Tr. 187). Examination was normal, and plaintiff was scheduled for
Percocet, or Acetaminophen with Oxycodone, is used to relieve moderate
to moderately severe pain.
Colace is a stool softener used on a temporary basis to relieve
hemoccult and sigmoidoscopy testing.
Memorial Hospital with complaints of pain in his left arm.
occlusion of the left upper extremity, and was transferred to
(Tr. 267, 260, 265, 301).
Hospital, examination revealed a left arm arterial occlusion, (Tr.
312), and plaintiff was admitted.
It was noted that
plaintiff smoked one to three packs of cigarettes per day and drank
six beers per day, and worked in “Recycling metals.”
“vegetation,” or abnormal growth, on the left ventricular aspect of
the aortic valve.
(Tr. 318, 335).
Venous Doppler testing of
extremity arterial occlusive disease, worse than the results of the
Venous Doppler testing that was performed on April 26, 2007.
The findings relative to plaintiff’s left lower extremity
were within normal limits.
Plaintiff underwent vascular
surgery during which a thrombus was removed, and he was discharged
on June 22, 2007.
On July 21, 2007, plaintiff was seen in follow up by Carl
Freter, M.D. at University of Missouri Health Care.
Plaintiff complained of an aching pain in his left lower extremity
which had been stable, but reported that he was feeling better
Plaintiff reported that he worked hauling
cigarettes per day and drank six beers per day.
Freter told plaintiff to stop smoking, but plaintiff reported that
he was not interested in quitting.
Plaintiff was given
Hospital with complaints of multiple abrasions and contusions to
alert and oriented.
Plaintiff was intoxicated, but
In a section titled “Other
History,” it was noted that plaintiff was incarcerated. (Tr. 270).
He reported that he was self-employed.
musculoskeletal or neurologic complaints.
revealed a broken nose.
He reported no
He was treated and released
into the custody of law enforcement in ambulatory condition.
On August 16, 2007, plaintiff was seen in the Cardiology
Outpatient Clinic of University of Missouri Health Care by Kul B.
Aggarwal, M.D., who diagnosed plaintiff with aortic valve disorder
complained of leg pain for which he was taking up to four Percocet
tablets per day.
He was also taking an anti-coagulant.
Dr. Aggarwal recommended that plaintiff follow up in two
months for a repeat echocardiogram.
On September 17, 2007, plaintiff saw W. Kirt Nichols,
M.D., at University of Missouri Health Care for follow-up.
Plaintiff reported stable left lower extremity pain and
only minimal swelling.
Plaintiff denied shortness of
breath or chest pain, and reported that he continued to smoke at
least one pack of cigarettes per day.
He was advised to
stop smoking in order to decrease his risk of future thromboembolic
On October 9, 2007, Ruth Stoecker, M.D., completed a Case
Dr. Stoecker noted that there was no
documented limitation to plaintiff’s functioning.
Stoecker noted plaintiff’s diagnoses, his clinical course and
surgical intervention, and noted that he denied musculoskeletal or
neurologic deficit until August 16, 2007.
noted that plaintiff continued to smoke despite medical advice to
stop, and also noted that plaintiff was fully ambulatory on July
25, 2007 when he was injured in an altercation and was discharged
into law enforcement custody.
Dr. Stoecker noted that
plaintiff had “no edema, no unhealed lesions, no claudication or
obstructing thrombus, no motor or sensory deficit.”
Dr. Stoecker noted that plaintiff had normal pedal pulses, and no
residual deficit from his two isolated thromboembolic events.
On October 17, 2007, plaintiff was seen at University
Hospital with complaints of worsening numbness in his left foot
The term “claudication” refers to a condition caused by
inadequate blood supply to the muscles and characterized by
attacks of lameness and pain, mainly in the calf muscles.
STEDMAN’S MEDICAL DICTIONARY (27th ed. 2000), available at STEDMAN’S
over the past three days.
and tobacco regularly.
He reported using alcohol
He was diagnosed with sensory
changes to his left foot, and advised to follow up at the vascular
On October 30, 2007, it was noted that
plaintiff’s foot pain was significantly improved with Neurontin.4
Arterial Doppler study performed on November 29, 2007
disease on the right, and normal values on the left.
On January 3, 2008, plaintiff was seen at University
Hospital for follow-up.
He reported that he
continued to have some lower extremity shooting pains which were
somewhat relieved by Neurontin.
He reported no
problems with his Lovenox injections, but stated that he felt
examination and lab testing yielded normal results.
January 10, 2008, plaintiff saw Dr. Aggarwal at University Hospital
Echocardiogram revealed a continued abnormality on plaintiff’s
Dr. Aggarwal noted that “the aortic valve
still remains an unresolved issue and if it is persistent, then
perhaps we should consider surgical correction” due to the risk of
Neurontin, or Gabapentin, is an anticonvulsant that is used
to treat various conditions, including relieving the pain of
postherpetic neuralgia (PHN; the burning, stabbing pain or aches
that may last for months or years after an attack of shingles)
and restless leg syndrome.
On January 24, 2008, plaintiff returned to Dr. Aggarwal
echocardiogram and noted that it revealed a small mass attached to
the aortic valve, and moderate aortic regurgitation. (Tr. 618-19).
worsening, and that plaintiff should undergo surgical aortic valve
Dr. Aggarwal noted that plaintiff’s leg pain
was unlikely to be related to plaintiff’s valvular heart disease,
and was unlikely to change following surgery.
January 25, 2008, plaintiff was seen in consultation by Richard
Schmaltz, M.D., of University Hospital for evaluation for surgical
reported that he had retired from work due to his health problems.
Plaintiff reported daily consumption of one pack of
cigarettes and six beers.
Plaintiff complained of some
numbness and burning of his left foot.
noted that the mass on plaintiff’s aortic valve was most likely the
source of plaintiff’s thromboembolic disease.
Schmaltz opined that plaintiff was a candidate to undergo coronary
artery bypass graft surgery as well as an aortic valve replacement
with a mechanical valve.
Plaintiff was hospitalized on
February 14, 2008, and on February 18, 2008, Dr. Schmaltz performed
aortic valve replacement.
the following day.
Plaintiff was discharged
He was instructed to walk and climb
stairs as tolerated, and to lift only ten pounds during weeks one
through four, and lift only 25 pounds during weeks five through 12.
On March 6, 2008, plaintiff was seen by Elizabeth U.
Ucheoma, M.D. at University Hospital for a two-week follow-up
It was noted that plaintiff was in very good
Plaintiff reported very minimal
sternal or right thigh pain, and was no longer taking Percocet but
was taking Vicodin.5
Plaintiff reported no chest pain or
shortness of breath, but did report right lower extremity weakness
that had been present since before the surgery and that made it
difficult to walk.
in all extremities.
Plaintiff had 2+ peripheral pulses
Plaintiff was given a work release form
to excuse him from work “for about four weeks.”
On April 18, 2008 and May 9, 2008, plaintiff presented to
John F. Best, M.D., for follow-up.
(Tr. 627, 629).
complained of pain in his legs on walking, and weakness.
During the April 18 visit, Dr. Best noted that plaintiff had made
an excellent recovery post aortic valve replacement, but that he
ordered a peripheral Doppler study.
Vicodin is a combination of the drugs Acetaminophen and Hydrocodone,
and is used to relieve moderate to moderately severe pain.
tenderness and spasm was noted in the right L5 area.
On June 5, 2008, plaintiff was evaluated by Jason Wolf,
M.D., at University Hospital for complaints of left leg pain. (Tr.
624). Plaintiff reported that he was taking Neurontin and that his
pain had improved to some extent.
that he had reduced his smoking to three packs per week.
Plaintiff confirmed that he understood that it was important to
stop smoking to improve his vascular condition.
recommended that plaintiff walk for exercise for 30 minutes per
day, and cease smoking entirely.
On June 13, 2008, plaintiff returned to Dr. Best with
continued complaints of symptoms in both lower extremities.
Dr. Best reviewed plaintiff’s Doppler study, and ordered
further testing to evaluate the severity of plaintiff’s peripheral
On July 1, 2008, Dr. Best performed
cardiac catheterization and an artogram which revealed no evidence
of significant supra popliteal disease, and mild infrapatellar
Dr. Best recommended aggressive medical
management and smoking cessation.
On August 19, 2008, plaintiff saw James McDowell, M.D.
and reported that he felt good but had discomfort in his right calf
and left foot.
Dr. McDowell noted that plaintiff’s
intermittent claudication had persisted for several years and
appeared to be stable at present, but should be monitored.
Plaintiff reported smoking one pack of cigarettes per day and
drinking alcohol, but that he was trying to quit.
had no swelling of his lower extremities, but his peripheral pulses
were noted to be diminished.
On September 12, 2008,
plaintiff returned to Dr. McDowell with complaints of left foot
pain that felt like a burn and electrical shock.
cigarettes per day, but stated that he was trying to quit.
Dr. McDowell diagnosed plaintiff with neuropathy and prescribed
medication, and advised plaintiff to follow up in one month.
In a Function Report completed on October 1, 2007,
plaintiff indicated that he lived alone in a house, and that his
preparing coffee and breakfast, performing needed housework such as
dishes, laundry and the like, preparing an evening meal, and
retiring for bed at 9:00 or 10:00 p.m.
that, due to the pain in his legs from surgery, he could not stand
or walk for any length of time.
woke him from sleep.
He stated that pain
Plaintiff wrote that he went outdoors
often, drove a car, and was able to go out alone.
wrote that he was able to shop for food and household supplies once
per week for one hour.
Plaintiff wrote that he spent four
to six hours per day engaging in his hobbies of reading and
Plaintiff wrote that he often
visited with others, and that people visited him often and some
people came by every day.
He wrote that he regularly went
to the store and regularly went to visit with friends and family.
Plaintiff wrote that he was unable to stand for very long or
carry more than a little weight, and that he could walk only onehalf block and could sit for only 15 to 20 minutes.
The ALJ’s Decision
The ALJ in this case determined that plaintiff had the
severe impairments of coronary artery disease, neuropathy not
otherwise specified, and left small finger amputation. (Docket No.
The ALJ determined that plaintiff did not have an impairment
or combination of impairments that met or medically equaled a
The ALJ determined that plaintiff had
the residual functional capacity (also “RFC”) to perform the full
range of sedentary work.6
The ALJ determined that
considering his age, education, work experience, and residual
functional capacity, there were jobs that existed in significant
numbers in the national economy that plaintiff could perform. (Tr.
25). The ALJ determined that plaintiff was not under a disability,
as defined in the Social Security Act, from February 1, 2007
through the date of the decision.
The Regulations define sedentary work as involving “lifting
no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a),
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker
v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir.
“inability 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 which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
If the claimant is
Next, the Commissioner
combination of impairments, meaning that which significantly limits
his ability to do basic work activities.
If the claimant’s
Commissioner then determines whether the claimant’s impairment(s)
meet or equal any listed in 20 C.F.R., Subpart P, Appendix 1.
claimant’s impairment(s) is equivalent to a listed impairment, he
is conclusively disabled.
At the fourth step, the Commissioner
establishes whether the claimant can perform his past relevant
Commissioner evaluates various factors to determine whether the
claimant is capable of performing any other work in the economy.
If not, the claimant is declared disabled and becomes entitled to
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
evidence is less than a preponderance but enough that a reasonable
person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).
The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision.
498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
administrative decision, this Court must affirm that decision even
if the record also supports an opposite decision.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003); see also Pearsall, 274
F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000) (In the event that two inconsistent conclusions may be drawn
supported by substantial evidence on the record as a whole).
In the case at bar, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence on the record as
In support, plaintiff argues that the ALJ failed to
properly evaluate the credibility of his subjective complaints, and
erroneously considered plaintiff’s failure to stop smoking despite
medical advice to do so.
Plaintiff also challenges the ALJ’s RFC
determination, arguing that it is unsupported by medical evidence,
and the ALJ failed to ensure a fully and fairly developed record.
In response, the Commissioner contends that the ALJ’s decision is
supported by substantial evidence on the record as a whole.
allegations of an inability to lift and carry up to ten pounds and
sit for most of an eight-hour workday were not consistent with the
evidence as a whole, persuasive, or credible. Plaintiff challenges
the ALJ’s adverse credibility determination, arguing that the ALJ
erroneously considered plaintiff’s failure to stop smoking, and
erroneously considered the lack of a medical opinion that plaintiff
had work-related limitations of function.
capacity, the ALJ must evaluate the credibility of his subjective
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007)
(citing Pearsall, 274 F.3d at 1217).
Testimony regarding pain is
necessarily subjective in nature, as it is the claimant’s own
perception of the effects of his alleged physical impairment.
Halpin v. Shalala, 999 F.2d 342, 346 (8th Cir.
the subjective nature of physical symptoms, and the absence of any
reliable technique for their measurement, it is difficult to prove,
Polaski at 1321-22.
In Polaski, the Eighth Circuit addressed this
evaluation of subjective complaints:
The absence of an objective medical basis
which supports the degree of severity of
subjective complaints alleged is just one
factor to be considered in evaluating the
credibility of the testimony and complaints.
The adjudicator must give full consideration
to all of the evidence presented relating to
claimant’s prior work record, and observations
by third parties and treating and examining
physicians relating to such matters as: (1)
the claimant’s daily activities; (2) the
duration, frequency and intensity of the pain;
(3) precipitating and aggravating factors; (4)
dosage, effectiveness and side effects of
medication; (5) functional restrictions.
Id. at 1322.
Although the ALJ is not free to accept or reject the
claimant’s subjective complaints based upon personal observations
alone, he may discount such complaints if there are inconsistencies
in the evidence as a whole.
The “crucial question” is not
whether the claimant experiences symptoms, but whether his credible
subjective complaints prevent him from working. Gregg v. Barnhart,
354 F.3d 710, 713-14 (8th Cir. 2003).
When an ALJ explicitly
complaints for a good reason, that decision should be upheld.
Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
of a claimant’s subjective testimony is primarily for the ALJ, not
the courts, to decide, and the court considers with deference the
ALJ’s decision on the subject.
Tellez v. Barnhart, 403 F.3d 953,
957 (8th Cir. 2005).
In assessing plaintiff’s credibility, the ALJ in this
case wrote that he had considered all of plaintiff’s symptoms and
the extent to which they were consistent with the objective medical
evidence based upon the requirements of 20 C.F.R. §§ 404.1529 and
416.929, and SSRs 96-4p and 96-7p, which correspond with the
Polaski decision and credibility determination, and listed all of
the Polaski factors.
The ALJ analyzed all of the evidence of
record, and noted numerous inconsistencies in the record that
precluding all work. Review of the ALJ’s credibility determination
reveals no error.
The ALJ noted that the medical records were “replete with
documentation of non-compliance” on plaintiff’s part regarding
medical advice to stop smoking, despite the fact that plaintiff was
advised, and had indicated his understanding, that he must stop
smoking in order to improve his vascular status.
ALJ wrote that he considered it inconsistent “that an individual,
if truly desirous of work, would repeatedly fail to comply with
prescribed treatment for ailments which he feels are significantly
limiting his functional capacity.
It is reasonable to infer that
an individual would attempt to comply with prescribed treatments
which are intended to alleviate allegedly severe symptoms.”
This finding is supported by the record.
In the case at
bar, plaintiff alleges that his vascular condition causes symptoms
that render him unable to walk or perform any work.
As the ALJ
noted, plaintiff’s medical records show that he failed to heed
medical advice to stop smoking even though he knew that his
thromboembolic events were related to smoking.
treatment if it can restore the ability to work, and further
provide that failure to do so without good reason may result in a
finding of not disabled.
20 C.F.R. §§ 404.1530, 416.930.
Eighth Circuit has held that failure to follow a prescribed course
of remedial treatment, including cessation of smoking, without good
reason is grounds for denying an application for benefits. Kisling
v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997).
subjective complaints of pain may be discredited when a claimant
refuses to heed his doctor’s advice to stop smoking.
Apfel, 224 F.3d 891, 895 (8th Cir. 1996).
Plaintiff argues that he had a good reason to ignore
medical advice to stop smoking because he was unable to afford
smoking cessation medication.
The Eighth Circuit has noted that,
while evidence of financial hardship may justify a claimant’s
failure to obtain medication or remedial treatment, it is not an
Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir.
1992) (citing Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir.
1984)); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989); Brown
v. Heckler, 767 F.2d 451, 453 n. 2 (8th Cir. 1985).
plaintiff complains that Medicaid did not cover the expense of
smoking cessation medication, the record fails to indicate that
plaintiff sought other means of assistance to help him afford
smoking cessation medication, or to afford other means of smoking
In fact, when plaintiff was discharged from
University Hospital on February 19, 2007, the importance of smoking
cessation was again emphasized, and plaintiff was advised to talk
to his doctor or to call “Fit For Life” (a telephone number was
provided) if he needed help quitting or was interested in a smoking
Plaintiff does not argue, nor is
there evidence in the record to support the conclusion, that he
claimant’s assertions of a lack of financial resources are not
convincing where he fails to take advantage of available medical
See Brown v. Apfel, 221 F.3d 1341 (8th Cir.
2000) (ALJ properly discounted claimant’s contention that he could
not afford medication and treatment absent evidence showing that
claimant sought low-cost or free medical care, and given evidence
suggesting that he routinely bought beer and cigarettes); see also
Johnson, 866 F.2d at 275.
In addition, plaintiff did manage to afford to regularly
consistently documents was a regular consumption habit.
relevant to the case at bar, plaintiff’s habit totaled three packs
of cigarettes (and a six-pack of beer) each day, and during the
time directly preceding plaintiff’s administrative hearing totaled
one pack of cigarettes per day.
While not alone dispositive, this
is one factor supporting the ALJ’s credibility determination.
Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (the fact that
a claimant does not forego smoking to help finance medication
detracts from his credibility).
Plaintiff also argues that his failure to stop smoking
should be excused due to the addictive nature of tobacco.
plaintiff may be correct that smoking cessation is difficult, in
the case at bar, the medical evidence repeatedly documents that
plaintiff’s smoking had a direct negative impact on his allegedly
disabling thromboembolic events, and that plaintiff was well aware
of such impact. Plaintiff’s doctors repeatedly cautioned plaintiff
that smoking increased his risks of developing more thromboembolic
events, which plaintiff alleges cause symptoms that render him
unable to walk or perform any work.
Similarly, plaintiff argues that it was improper for the
ALJ to consider his failure to quit smoking because he had reduced
his smoking to less than one pack of cigarettes per day.
the contemporaneous evidence of record shows that plaintiff was
smoking more than he admitted during the hearing.
(immediately preceding his September 16, 2008 hearing), he reported
that he was smoking one pack of cigarettes per day.
This is consistent with other evidence in the record as a
whole, which shows that plaintiff told Dr. Freter that he was “not
plaintiff failed to forego purchasing cigarettes and alcohol in
order to afford smoking cessation medication, and he also failed to
avail himself of smoking cessation assistance when it was offered.
Despite plaintiff’s assertions that his failure to stop smoking
should be excused, substantial evidence in the record as a whole
supports the conclusion that plaintiff did not have a good reason
to heed medical advice to stop smoking.
The undersigned therefore
concludes that the ALJ properly considered plaintiff’s failure to
follow medical advice to stop smoking.
20 C.F.R. §§ 404.1530,
416.930; Kisling, 105 F.3d at 1257; Wheeler, 224 F.3d at 895.
Continuing his analysis of the evidence of record, the
ALJ noted that in March and April of 2008, plaintiff was noted to
be enjoying an excellent recovery from surgery. Doppler ultrasound
testing performed on plaintiff’s lower extremities in June of 2008
revealed only mild findings on the right, and normal findings on
the left. In August of 2008, plaintiff reported feeling good, with
the exception of some discomfort in his right calf.
of 2008, Dr. McDowell noted that plaintiff’s claudication appeared
to be stable.
The lack of clinical findings is one factor an ALJ
may consider in evaluating a claimant’s subjective complaints of
disabling symptoms. Matthews v. Bowen, 879 F.2d 422, 425 (8th Cir.
When plaintiff saw Dr. Aggarwal on January 24, 2008, Dr.
Aggarwal acknowledged that plaintiff’s leg symptoms were unlikely
to change following his aortic valve replacement surgery and,
following that procedure, plaintiff was instructed to walk and
climb stairs as tolerated, and to progressively increase his
lifting from ten pounds during weeks one through four to 25 pounds
during weeks five through 12.
In June of 2008, Dr. Wolf instructed
plaintiff to walk for 30 minutes per day.
There is no evidence to
support the conclusion that plaintiff’s doctors felt that plaintiff
should restrict his activities to the severe extent plaintiff
testified that he did.
Similarly, while the medical evidence
documents that plaintiff had some leg complaints, the evidence
fails to show that plaintiff described to his doctors pain and
functional limitations of the severe nature he described during the
Plaintiff never reported to his doctors
that he was unable to sit for long periods of time.
while plaintiff did occasionally report discomfort when walking, he
did not describe limitations of the same severe nature he described
during the administrative hearing. The medical evidence shows that
administrative hearing, to walk for 30 minutes per day.
no indication in Dr. Wolf’s office note that plaintiff made any
attempt to express to Dr. Wolf that he was unable to do so.
appears that plaintiff’s alleged limitations are due more to his
own choice than any medical condition. See Choate v. Barnhart, 457
activities when such limitations were inconsistent with the medical
records); see also Schroeder v. Sullivan, 796 F.Supp. 1265, 1270
documented in the record, and his failure to complain to his
doctors about drowsiness contradicted his assertion that he needed
to nap during the day).
If plaintiff were in fact limited to the
alarming extent he alleges, it is reasonable to expect that he
would report such limitations when seeking medical treatment.
While plaintiff testified that he was unable to lift more
progressively increased his functional capacity from lifting ten
pounds in weeks one through four to lifting 25 pounds in weeks five
While plaintiff testified that he was unable to stand
in one place or sit for longer than ten minutes and had to spend
nine hours per day in a recliner, he indicated in his Function
Report that he shopped for groceries and household supplies on a
weekly basis for one hour, drove, went out alone, went outside
often, traveled to visit friends, and entertained friends in his
home, some of whom visited every day.
The ALJ also noted that the
evidence showed that plaintiff was involved in an altercation in
July of 2007 and suffered injuries requiring medical treatment, and
was fully ambulatory when released into the custody of the sheriff.
These inconsistencies detract from the credibility of plaintiff’s
subjective allegations of symptoms precluding all work. “Where
[Commissioner] may discount subjective complaints.”
Shalala, 46 F.3d 37, 39 (8th Cir. 1995) (per curiam).
The ALJ also noted that plaintiff’s work history, while
determination when considered in light of the other evidence of
credibility; he merely mentioned plaintiff’s earnings history in
the context of acknowledging plaintiff’s consistent work history.
A review of the ALJ’s credibility determination shows
that, in a manner consistent with and required by Polaski, he
considered plaintiff’s subjective complaints on the basis of the
entire record before him, and set forth numerous inconsistencies
detracting from plaintiff’s credibility.
An ALJ may disbelieve
subjective complaints where there are inconsistencies on the record
as a whole.
Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir.
When an ALJ seriously considers, but for good reasons
Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.
1992). Because the ALJ considered the Polaski factors and gave good
disabling symptoms, that decision should be upheld.
F.3d at 962.
The ALJ in this case determined that plaintiff retained
the RFC to perform the full range of sedentary work.
challenges the opinion of Dr. Stoecker, and claims that the ALJ
committed various errors in determining his RFC.
plaintiff argues that the RFC determination is not supported by
some medical evidence, and that the ALJ failed to ensure a fully
and fairly developed record and failed to identify plaintiff’s
Review of the ALJ’s RFC determination reveals that is
supported by substantial evidence on the record as a whole.
Residual functional capacity is defined as the most a
person remains able to do despite his limitations.
20 C.F.R. §§
404.1545, 416.945; Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir.
The ALJ must assess a claimant’s RFC based upon all of the
records, the observations of treating physicians and others, and
the claimant’s own description of his symptoms and limitations.
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995); Goff, 421
F.3d at 793.
Because a claimant’s RFC is a medical question, an
ALJ’s assessment of it must be supported by some medical evidence
of the claimant’s ability to function in the workplace. Lauer, 245
F.3d at 704; see also Krogmeier v. Barnhart, 294 F.3d 1019, 1023
(8th Cir. 2002).
In the case at bar, in determining plaintiff’s RFC, the
The ALJ noted that, following plaintiff’s aortic valve
replacement in February of 2008, his doctors opined that he should
observe temporary restrictions in terms of pushing, pulling or
lifting that might put strain on his chest, and could therefore
lift only ten pounds during the four weeks following surgery, and
25 pounds during the fifth through 12th week following surgery.
The ALJ also noted plaintiff’s testimony that he could lift 10
The ALJ noted that no physician ever found or imposed any
long term, significant and adverse limitations upon plaintiff’s
ability to function.
The ALJ also noted that, shortly before the
regular exercise in the form of walking for 30 minutes per day.
The ALJ in this case explained that he placed great
weight upon the medical information from plaintiff’s treating
completed by the “non-physician adjudicator.”
was apparently referring to the “Explanation of Determination”
The ALJ’s treatment of Dr. Stoecker’s opinion will be
signed by a state agency disability examiner on October 10, 2007.
The ALJ correctly noted that this was not medical evidence, and
gave it no weight.
Plaintiff challenges the October 9, 2007 opinion of Dr.
Stoecker, arguing that it is not contemporaneous with the ALJ’s
decision and that it fails to take into account subsequent medical
However, nothing in the record indicates that Dr.
Stoecker’s opinion played any role in the ALJ’s decision-making
In fact, as the Commissioner notes, the ALJ mistakenly
wrote that “[n]o state agency physician has rendered a decision in
acknowledgment or discussion of Dr. Stoecker’s opinion.
the record alleviates concern that the ALJ was remiss or overlooked
Dr. Stoecker’s opinion.
At the outset of the administrative
hearing, the ALJ invited plaintiff’s counsel to voice objections to
While counsel stated that he had no objections,
counsel did voice concerns about Dr. Stoecker’s opinion; namely,
that subsequent medical records belied Dr. Stoecker’s observation
that plaintiff’s aortic valve condition required no intervention
and that his claudication had resolved.
The ALJ acknowledged
counsel’s observations, and stated “I’ll take note of that and I’ll
The ALJ then admitted the entire file
into evidence “with that notation.”
While the ALJ did write
that no state agency physician had rendered a decision in the case,
Stoecker’s opinion, but that he removed it from consideration. Any
deficiencies in Dr. Stoecker’s opinion are not attributable to the
Plaintiff contends that the ALJ’s RFC determination is
not supported by some medical evidence addressing plaintiff’s
functional abilities, inasmuch as there is no medical source
statement from any of plaintiff’s treating physicians.
statement does not demand the conclusion that there is no medical
evidence to support the ALJ’s decision.
“An ALJ bears the primary
capacity based on all relevant evidence.”
Roberts v. Apfel, 222
F.3d 466, 469 (8th Cir. 2000) (citing Anderson, 51 F.3d at 779).
Medical opinions are but one type of medical evidence used to
evaluate a disability claim.
Tindell v. Barnhart, 444 F.3d 1002,
1005 (8th Cir. 2006); see also Cox v. Astrue, 495 F.3d 614, 619
(8th Cir. 2007) (internal citations omitted) (in evaluating a
claimant’s RFC, an ALJ is not limited to considering medical
evidence exclusively); Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.
functional capacity may be proved only by medical evidence, we
In addition to medical records, the ALJ must also
consider the observations of treating physicians and others, and
the claimant’s own description of his limitations.
Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
Ultimately, RFC is an
administrative determination reserved for the Commissioner.
The ALJ in this case considered all of the foregoing
factors in determining plaintiff’s RFC. The ALJ considered medical
evidence showing that, in February of 2008, plaintiff’s treating
physicians advised him to incrementally increase his functioning.
plaintiff’s administrative hearing, Dr. Wolf advised plaintiff to
engage in additional exercise in the form of daily walks.
September of 2008, Dr. McDowell noted that plaintiff’s claudication
appeared to be stable.
Plaintiff himself testified that he could
lift ten pounds, and also testified that he had been gaining weight
lately “[e]ver since [he] got to feeling a little bit better.”
When considered with all of the other factors relevant
supporting the ALJ’s RFC assessment. As the ALJ noted, the medical
evidence plaintiff submitted in support of his claims failed to
document that plaintiff’s conditions imposed functional limitations
beyond those specified in plaintiff’s RFC.
The Eighth Circuit has
recently recognized that this Court’s role is to “review the record
to ensure that an ALJ does not disregard evidence or ignore
potential limitations[.] . . . [W]e do not require an ALJ to
mechanically list and reject every possible limitation.
Astrue, 648 F.3d 605, 615 (8th Cir. 2011).
Plaintiff also contends that the ALJ failed to fulfill
his duty to ensure a fully and fairly developed record, and should
have ordered a consultative evaluation to assist him in analyzing
the voluminous and complex medical evidence of record.
contends that the ALJ’s analysis of the evidence without the
The undersigned disagrees.
It is well settled that an ALJ is required to ensure a
fully and fairly developed record. Nevland v. Apfel, 204 F.3d 853,
857 (8th Cir. 2000) (citing Warner v. Heckler, 722 F.2d 428, 431
(8th Cir. 1983)).
Included in this duty is the responsibility of
physician, or at least an examining physician, addressing the
particular impairments at issue.
Nevland, 204 F.3d at 858; see
Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir. 2004).
considering plaintiff’s argument, this Court’s inquiry is whether
plaintiff was prejudiced or treated unfairly by how the ALJ did or
did not develop the record.
Onstad v. Shalala, 999 F.2d 1232, 1234
(8th Cir. 1993) (citing Phelan v. Bowen, 846 F.2d 478, 481 (8th
In the case at bar, there is no indication that the ALJ
felt unable to make the assessment he made.
The ALJ thoroughly
analyzed all of the medical and non-medical evidence of record, and
in his RFC assessment recognized that plaintiff’s conditions impose
“‘Sedentary work’ represents a significantly
restricted range of work, and individuals with a maximum sustained
20 C.F.R. Pt. 404, subpt. P, app. 2 §
Plaintiff presents no evidence from any of his
physicians that he was limited to an extent greater than that
determined by the ALJ.
The ALJ also noted the results of objective
testing, and the statements from plaintiff’s treating physicians
functioning and walk daily for additional exercise.
An ALJ’s duty
to develop the record is not never-ending, and an ALJ is not
Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994).
Plaintiff also fails
to recognize that the ALJ was required to include in his RFC
assessment only those limitations that he determined were credible
and supported by substantial evidence in the record as a whole.
See Tindell, 444 F.3d at 1007.
In addition, it is notable that counsel for plaintiff
does not contend, nor does the administrative record indicate, that
counsel raised any concern at the administrative level about the
need to obtain a consultative evaluation or additional information
from plaintiff’s physicians.
There is no indication that counsel
ever raised this issue with the ALJ either before or during the
administrative hearing, nor is it apparent that counsel himself
made any attempts to obtain such information.
While the ALJ has a
duty to develop the record fully and fairly, even when a claimant
is represented by counsel, “it is of some relevance to us that the
lawyer did not obtain (or, so far as we know, try to obtain) the
items that are now being complained about.”
Onstad, 999 F.2d at
The available evidence of record provided an adequate
basis for the ALJ to determine the merits of plaintiff’s claims,
and the ALJ was therefore not required to order a consultative
See McCoy, 648 F.3d at 612 (citing Conley v. Bowen,
781 F.2d 143, 146 (8th Cir. 1986) (an ALJ is required to order
presented are insufficient to determine whether the claimant is
demonstrate that he was prejudiced.
The undersigned therefore
concludes that the ALJ fulfilled his duty to ensure a fully and
fairly developed record, and remand is unnecessary.
999 F.2d at 1234 (internal citations omitted).
Plaintiff also contends that the ALJ failed to assess
his work-related abilities on a function by function basis, and
failed to make findings regarding plaintiff’s crush injury and
subsequent finger amputation, his left arm blood clot, his left leg
blood clot, poor circulation in his right leg, and environmental
limitations related to his aortic valve replacement. Review of the
ALJ’s decision reveals no error.
Plaintiff is correct that the ALJ should “identify the
individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis,”
Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (quoting
S.S.R. 96-8p, 1996 WL 374184, at *1).
In Depover, the Eighth
Circuit noted that an ALJ’s failure to make the function by
function assessment “could result in the adjudicator overlooking
some of an individual’s limitations or restrictions.”
Depover Court noted that, in Pfitzner v. Apfel, 169 F.3d 566, 56869 (8th Cir. 1999), the ALJ’s decision was reversed on this basis
claimant’s RFC, and instead described it “only in general terms,”
leaving it unclear whether substantial evidence supported the ALJ’s
decision that the claimant could return to his past relevant work.
In the case at bar, however, (as in Depover) the ALJ did
not merely describe plaintiff’s RFC in “general terms.”
Instead, as noted above, the ALJ conducted a detailed analysis of
the evidence of record and of plaintiff’s testimony, and formulated
limitations that the ALJ found credible and supported by the
record. The ALJ also specifically wrote that plaintiff was able to
lift and carry up to ten pounds and sit for most of the day through
an eight-hour work day.
The ALJ also noted medical evidence
concerning plaintiff’s functional abilities and advice to exercise,
which adequately takes into account plaintiff’s lower extremity
Plaintiff complains that the ALJ erroneously failed to
include limitations related to his finger amputation and arm
condition, and environmental limitations related to his aortic
However, the record is void of evidence that
these conditions caused any functional limitations or necessitated
any environmental limitations, and plaintiff did not testify that
any of these conditions caused any functional limitations or that
he had any environmental sensitivity.
While plaintiff testified
that he had some sensitivity in his finger amputation area when
placing his hand in his pocket or rubbing against something, he
described no difficulties in fingering or manipulating objects.
Plaintiff denied any problems with his left arm, and denied chest
attributable to any of the conditions plaintiff complains were
omitted, and plaintiff points to no evidence suggesting otherwise.
In fact, following his amputation revision procedure, plaintiff was
released to return to work without restrictions.
Having carefully reviewed the record, it is apparent that
the ALJ’s RFC determination was made following a comprehensive
examination of the record, and it does not appear that the ALJ
overlooked any limitations.
While the ALJ did not present his RFC
findings in bullet-point format with each limitation immediately
followed by a discussion of the supporting evidence, such a rigid
format is not required by Social Security Ruling 96-8p.
thoroughly analyzed all of the medical and non-medical evidence,
performed a legally sufficient analysis of the credibility of
plaintiff’s subjective allegations, and then formulated a specific
RFC that took into account all of plaintiff’s limitations caused by
his medically determinable impairments that the ALJ found to be
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (medical records,
physician observations, and plaintiff’s subjective statements may
be used to support the RFC).
Because some medical evidence
supports the ALJ’s RFC determination, it must stand.
See Steed v.
Astrue, 524 F.3d 872, 876 (8th Cir. 2008).
The standard of review this Court must use in analyzing
this case is a deferential one.
See Steed, 524 F.3d at 876.
ALJ was able to observe plaintiff as he testified during the
administrative hearing, and this, in addition to the voluminous
medical evidence, convinced the ALJ that plaintiff was not entirely
credible and could perform sedentary work.
position to make this determination.
The ALJ is in the best
Id. (citing Ramirez v.
Barnhart, 292 F.3d 576, 581 (8th Cir. 2002)).
cannot say that the ALJ overlooked any of plaintiff’s limitations.
See Owen, 551 F.3d at 801-02 (No error in ALJ’s failure to include
an alleged impairment in RFC when evidence did not support the
claimant’s descriptions of restrictions allegedly caused by the
Commissioner’s decision, this Court may not reverse that decision
outcome, or because another court could have decided the case
Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001);
Browning, 958 F.2d at 821.
Therefore, for all of the foregoing reasons, on the
claims that plaintiff raises,
IT IS HEREBY ORDERED that the Commissioner’s decision is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of December, 2012.
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