Welch v. Colvin

Filing 24

MEMORANDUM AND ORDER re: 20 , 15 ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice.A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Nannette A. Baker on 2/18/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

ELIZABETH D. WELCH,

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13-CV-13 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision denying Elizabeth D. Welch’s
application for disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security income
under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters are pending
before the undersigned United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c). Because the Commissioner’s final decision is
supported by substantial evidence on the record as a whole, it is affirmed.
I. Procedural History
On January 8 and January 11, 2010, plaintiff filed her applications for
disability insurance benefits (DIB) and supplemental security income (SSI),

respectively, alleging that she became disabled on March 1, 2009, because of a
heart condition, back problems, and depression. (Tr. 186-92, 193-97, 216.) On
May 19, 2010, the Social Security Administration denied plaintiff’s claims for
benefits. (Tr. 115-16, 117-18, 120-25.) Upon plaintiff’s request, a hearing was
held before an administrative law judge (ALJ) on August 17, 2011, at which
plaintiff and a vocational expert testified. Plaintiff’s partner also testified at the
hearing. (Tr. 71-114.) On September 1, 2011, the ALJ issued a decision denying
plaintiff’s claims for benefits, finding vocational expert testimony to support a
conclusion that plaintiff was able to perform light work as it exists in significant
numbers in the national economy, and specifically, retail marker, folding machine
operator, and cafeteria attendant; as well as sedentary work, such as document
preparer, circuit board assembler, and laminator. (Tr. 54-66.) On February 5,
2013, upon review of additional evidence, the Appeals Council denied plaintiff’s
request for review of the ALJ's decision. (Tr. 1-6.) The ALJ's determination thus
stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff contends that the ALJ’s
decision is not supported by substantial evidence on the record as a whole.
Plaintiff specifically challenges the ALJ’s determination regarding her residual
functional capacity (RFC), arguing that the ALJ rendered only conclusory findings
unsupported by the record; that no medical assessment appears in the record upon
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which the ALJ could base an RFC determination; and that substantial evidence
fails to show that plaintiff can perform sustained work-related activities.
Plaintiff also claims that the ALJ erred in finding her subjective complaints not to
be credible. Plaintiff requests that the final decision be reversed and that the matter
be remanded for further development. For the reasons that follow, the ALJ did not
err in his determination.1
II. Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on August 17, 2011, plaintiff testified in response to

questions posed by the ALJ. Plaintiff was not represented by counsel at the
hearing.
At the time of the hearing, plaintiff was forty-six years of age. Plaintiff
stands five-feet, five inches tall and weighs 170 pounds. Plaintiff is single and
lives in a mobile home with her longtime partner of thirty years and their two
children, ages eleven and twelve. Plaintiff has a ninth-grade education and never
obtained her GED. Plaintiff can read and write but has difficulty understanding the
meaning of some words. Plaintiff receives food stamps and has no other source of

The undersigned has reviewed the entirety of the administrative record in determining whether
the Commissioner’s adverse decision is supported by substantial evidence. The recitation of
specific evidence in this Memorandum and Order, however, is limited to only that relating to the
issues raised by plaintiff on this appeal.
1

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income. Plaintiff has intermittently received Medicaid assistance. (Tr. 81-84, 91.)
Plaintiff’s Work History Report shows that plaintiff worked as a certified
nurse’s aide in a nursing home from 2004 to 2005, as well as for a few months in
2006. Also in 2006, plaintiff worked for a few weeks as a caretaker through an
independent living service. In 2007, plaintiff worked for a few months as a prep
cook in a restaurant. From June 2008 to May 2009, plaintiff worked as a cook in a
restaurant/convenience store. (Tr. 257.) Plaintiff testified that she was sent home
from her last job on numerous occasions because of her high blood pressure and
that her employer would not take her back when she returned to her job on March
1, 2009. Plaintiff testified that she applied for other jobs before filing for
disability, but no one would hire her. (Tr. 84-86.)
Plaintiff testified that she has had two heart attacks, including one that
occurred in 1999. Plaintiff testified that she has had two stents placed, with her
most recent stent procedure occurring in 2007. (Tr. 100-01.) Plaintiff testified that
her high blood pressure appears to be controlled with medication. Plaintiff
testified that she also takes a blood thinner, aspirin, and other medication for her
heart, as well as medication for cholesterol. (Tr. 94-95, 97.)
Plaintiff testified that she has back pain because of slipped herniated discs
and that the pain is usually at a level six or seven on a scale of one to ten. Plaintiff
testified that she takes OxyContin, Hydrocodone with Tylenol, and Flexeril for the
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pain and that the medication brings her pain down to a level two or three. Plaintiff
testified that she sometimes experiences itching as a side effect of her medication.
Plaintiff testified that she has never had surgery for her back condition but received
an epidural spinal injection. (Tr. 96, 98-99.)
Plaintiff testified that she suffers from depression and has crying spells once
or twice a week. Plaintiff testified that she also has anxiety and often feels as
though she will have an attack. Plaintiff testified that she takes medication that
helps calm her. Plaintiff testified that she hears things, but questioned whether it is
her imagination. Plaintiff testified that she has poor concentration. Plaintiff
testified that she has never seen a psychiatrist or psychologist for her conditions.
(Tr. 96-97, 101-03.)
As to exertional abilities, plaintiff testified that she can sit for an hour and a
half after which she must get up and stand or walk. Plaintiff testified that she can
stand for a “good while” but cannot walk very far because she gets hot, agitated,
and out of breath. Plaintiff testified that she walks a couple of laps on a nearby
track. Plaintiff testified that she can lift twenty to twenty-five pounds but cannot
pick up anything heavy because of a prior wrist injury. Plaintiff testified that she
fears that too much lifting would affect her stents. Plaintiff testified that she has
problems bending and with climbing many steps because of her back pain.
Plaintiff testified that she can care for her personal needs. (Tr. 93, 100, 103-04.)
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As to her daily activities, plaintiff testified that she gets up at 6:30 a.m. and
“pick[s] up.” Plaintiff testified that she sits around during the day and tries to walk
for exercise. Plaintiff testified that she watches television and reads magazines.
Plaintiff testified that she sometimes cooks, does the laundry, goes shopping, and
makes the bed with help. Plaintiff testified that she experiences pain while
standing at the sink doing dishes. Plaintiff testified that her partner does most of
the sweeping, mopping, and vacuuming and will also help her with chores.
Plaintiff testified that she has friends, is sociable, and gets along with other people.
Plaintiff testified that she has a driver’s license and drives approximately fifty
miles a week. Plaintiff testified that she and her partner sometimes go out to eat on
the weekends. Plaintiff testified that she enjoys fishing and swimming with her
children and is active in church. (Tr. 82, 89-92.)
B.

Testimony of Plaintiff’s Partner
Danny Shealor, plaintiff’s longtime partner of thirty years, testified at the

hearing in response to questions posed by plaintiff and the ALJ.
Mr. Shealor testified that he does most of the housework, including doing
the dishes and the laundry; and also cares for the children, including feeding them
and getting them ready for school. (Tr. 106-07.)
Mr. Shealor testified that he and plaintiff take walks but that plaintiff
becomes worn out and short of breath after a couple of blocks. (Tr. 106.)
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Mr. Shealor testified that plaintiff cries easily and is stressed. (Tr. 107.)
Mr. Shealor testified that plaintiff reads the mail and the newspaper but does
not read magazines at home. (Tr. 107-08.)
C.

Testimony of Vocational Expert
Barbara Myers, a vocational expert, testified at the hearing in response to

questions posed by the ALJ.
Ms. Myers classified plaintiff’s past work as a nurse’s aide as medium and
semi-skilled and as a prep cook as medium and unskilled. Ms. Myers further
testified that plaintiff actually performed the work of prep cook at the light level of
exertion. (Tr. 110.)
The ALJ asked Ms. Myers to consider an individual forty-six years of age
with a limited education and with plaintiff’s past relevant work experience. The
ALJ asked Ms. Myers to further assume the individual to be
capable of performing the exertional demands of light work as defined
in the Social Security regulations; specifically, the person can lift,
carry, push, pull 20 pounds occasionally, 10 pounds frequently; sit,
stand, walk, each, six out [of] eight, for a total of eight out of eight;
but, would limit the person - - occasional climb, occasional balance,
occasional stoop, occasional crouch, occasional ladders, ropes, and
scaffolds; no concentrated exposure to moving machinery,
unprotected heights, vibrations, dusts, fumes, and gases.
(Tr. 111.) Ms. Myers testified that such a person would be able to perform
plaintiff’s past relevant work as a prep cook as actually performed by plaintiff.
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Ms. Myers further testified that such a person would also be able to perform light
work as a retail marker, of which 27,000 such jobs existed in the State of Missouri
and 1,500,000 nationally; as a folding machine operator, of which 800 such jobs
existed in the State of Missouri and 31,000 nationally; and as a cafeteria attendant,
of which 4,900 such jobs existed in the State of Missouri and 275,000 nationally.
(Tr. 111-12.)
The ALJ then asked Ms. Myers to assume the same individual to be limited
to sedentary work in that she could sit for six out of eight hours and stand/walk for
two out of eight hours, for a total of eight out of eight hours; but to retain the same
lifting, postural, and environmental limitations as in the first hypothetical. Ms.
Myers testified that such a person could perform work as a document preparer, of
which 800 such jobs existed in the State of Missouri and 30,000 nationally; as a
circuit board assembler, of which 1,100 such jobs existed in the State of Missouri
and 55,000 nationally; and as a laminator, of which 200 such jobs existed in the
State of Missouri and 1,000 nationally. (Tr. 112-13.)
III. Relevant Medical Records Before the ALJ
Plaintiff was admitted to St. Luke’s Hospital on May 9, 1999, with
complaints of chest pain and tingling and numbness in the arm. Dr. Alexander M.
Bollis determined plaintiff’s presentment to be compatible with acute myocardial
infarction. Cardiac catheterization showed significant disease involving the
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proximal region of the left anterior descending coronary artery, and primary
stenting was performed. Plaintiff was discharged on May 12, 1999. (Tr. 564-67,
570.) Subsequent myocardial scans in August 2000, April 2002, and August 2003
yielded normal results. (Tr. 550-54, 555-62, 577-79.)
An x-ray of the thoracic spine taken April 28, 2006, in response to plaintiff’s
complaint of back pain was essentially normal with mild kyphosis noted. (Tr.
617.) An MRI of the lumbar spine taken May 13, showed disc bulging between
L4-S1 with midline herniations of disc material at both the L4-5 levels. The lateral
recesses did not appear to be affected by such herniations. An MRI of the thoracic
spine taken that same date showed low signal irregularities in the posterior aspect
of the thecal sac with possible very slight narrowing of the cord. (Tr. 325-26.)
On May 26, 2006, plaintiff visited Dr. Kyo S. Cho with complaints of low
back pain and sciatica. Dr. Cho noted the results of the recent MRIs and referred
plaintiff for epidural steroid injection at the L4-5 and L5-S1 levels of the spine.
(Tr. 335.) Plaintiff underwent such injection on June 12, 2006. (Tr. 321-24.)
On June 13, 2006, plaintiff visited Dr. Bollis at Pike County Memorial
Hospital (PCMH) for follow up examination relating to coronary artery disease
(CAD), status post myocardial infarction, status post percutaneous transluminal
coronary angioplasty (PTCA), hyperlipidemia, and hypertension. Plaintiff’s

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medications were noted to be Lopressor, Lovastatin, Xanax, and aspirin.2 Plaintiff
was noted to be doing well with no symptoms noted. Physical examination was
unremarkable. Dr. Bollis noted plaintiff’s energy level to be reasonable. No
changes in care were recommended. (Tr. 303.) On July 17, Dr. Bollis noted
plaintiff’s conditions to be stable. No changes in treatment were recommended.
(Tr. 313.)
Plaintiff was admitted to the emergency room at PCMH on June 27, 2007,
with complaints of chest pain and numbness/tingling in the arms and hands. A
chest x-ray showed no active pulmonary disease. An EKG showed marked sinus
bradycardia. Plaintiff was transferred to St. Luke’s Hospital that same date. (Tr.
444-55, 465, 468, 475, 484.)
Upon plaintiff’s admission to St. Luke’s, plaintiff’s history of myocardial
infarction in 1999 was noted with associated stent placement. Plaintiff’s history of
hypertension, anxiety, depression, and chronic pain was also noted. It was noted
that plaintiff was taking multiple pain medications for lumbar disk herniation.
Cardiac catheterization showed new disease in the left coronary artery, and an
angioplasty was performed. (Tr. 542-43, 576.)
Plaintiff visited Dr. Bollis on July 2, 2007, who noted plaintiff’s recent stent
The administrative record does not contain any record of when these medications were
prescribed, by whom, or for what condition(s).

2

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placement procedure. Plaintiff reported no current chest pain or shortness of
breath. Dr. Bollis noted plaintiff’s current medications to be Vicodin, Xanax,
Norvasc, Lexapro, Plavix, Methocarbamol, Naprosyn, OxyContin, Zocor,
Tizanidine, and Metoprolol.3 Physical examination was unremarkable. Dr. Bollis
instructed plaintiff to discontinue Naprosyn and aspirin and to return in a few
weeks for follow up. (Tr. 459.) On July 30, plaintiff reported to Dr. Bollis that she
experienced occasional bilateral hand numbness. Positive Tinel’s sign was noted.
Plaintiff reported having no chest pain or shortness of breath. Dr. Bollis noted
plaintiff’s energy level to be good. Dr. Bollis instructed plaintiff to contact him if
her symptoms of numbness worsened. (Tr. 612.)
An x-ray taken of plaintiff’s lumbo-sacral spine on February 20, 2008, in
response to plaintiff’s complaints of back pain showed mild multilevel
degenerative disk disease. (Tr. 347.) A follow up MRI taken of the lumbar spine
on March 10 showed moderate disk bulging at the L4-5 level with a small annular
tear in the disk posteriorly and centrally, with evidence of a small central disk
protrusion and minimal central canal stenosis. Moderate disk bulging at the L5-S1
level was also noted, with evidence of a small right paracentral annular tear of the
disk and right paracentral disk protrusion. (Tr. 341-44.)
The administrative record does not contain any record of when these medications were
prescribed, by whom, or for what condition(s).

3

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Plaintiff returned to Dr. Bollis on April 14, 2008, for follow up relating to
CAD, status post myocardial infarction, status post PTCA, hyperlipidemia, and
hypertension. Dr. Bollis noted plaintiff’s current medications to be Vicodin,
Xanax, Norvasc, Plavix, Methocarbamol, OxyContin, Tizanidine, Metoprolol, and
Wellbutrin. Plaintiff reported having no problems with angina, shortness of breath,
orthopnea, paroxysmal nocturnal dyspnea, or peripheral edema. Dr. Bollis noted
plaintiff’s energy level to be adequate. Plaintiff reported having no medication
side effects. Plaintiff reported to Dr. Bollis that she had some bilateral arm
numbness with occasional weakness. Physical examination was unremarkable.
Dr. Bollis ordered laboratory and diagnostic testing. (Tr. 443.)
Plaintiff was admitted to the emergency room at PCMH on August 19, 2008,
with complaints of chest pain radiating to her arm, back, and neck with associated
nausea and shortness of breath. Plaintiff was noted to be anxious. A chest x-ray
showed no evidence of acute cardiopulmonary disease. An ECG was normal.
Plaintiff was discharged that same date. (Tr. 655-68.)
Plaintiff visited Pike Medical Clinic on January 7, 2009, for follow up
regarding pain management. Plaintiff’s medications were noted to include
Metoprolol, Wellbutrin, OxyContin, Alprazolam, Hydrocodone, Plavix, and
Cyclobenzaprine. Examination was essentially normal except musculoskeletal
examination yielded abnormal findings. Skelaxin was prescribed. (Tr. 699.)
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On February 10, 2009, plaintiff fell and injured her left wrist. X-rays
showed a tiny avulsion fragment along the dorsum of the wrist. A splint was
applied at PCMH, and plaintiff was discharged that same date. (Tr. 643-51.)
Follow up x-rays taken March 18 showed no definite abnormalities. (Tr. 640-41.)
Plaintiff returned to Pike Medical Clinic on March 10, 2009, for pain
management follow up. Musculoskeletal examination showed plaintiff’s range of
motion to be okay with decreased pain. Plaintiff’s prescription for OxyContin was
refilled. (Tr. 696.) On April 6, plaintiff reported to the Clinic that she was doing
well on her current medications and had no problems. Examination showed
limited range of motion about the lumbar spine. Plaintiff’s medications were
refilled. (Tr. 694.)
Between March 31 and April 23, 2009, plaintiff participated in physical
therapy for her wrist. Upon conclusion of therapy, it was noted that plaintiff could
carry twenty-five pounds without pain. Plaintiff reported that she could do all
activities of daily living with little pain and that she had only slight discomfort
associated with a bump on the back of her hand. Plaintiff was released to full work
duty. (Tr. 672-79.)
X-rays taken of the left wrist and forearm on May 6, 2009, showed avulsion
fracture off the dorsal aspect of the wrist, but were otherwise normal. (Tr. 637-38.)
Plaintiff returned to Pike Medical Clinic on May 6, 2009, for follow up
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regarding her hypertension and depression and to obtain medication refills. (Tr.
693.) On June 9, it was determined that plaintiff would undergo cardiac
consultation for angina. (Tr. 692.)
X-rays taken of the lumbo-sacral spine on July 13, 2009, yielded essentially
normal results. (Tr. 635.)
Between August 7 and September 21, 2009, plaintiff visited Pike Medical
Clinic on three occasions for follow up of her conditions, including depression and
chronic pain. Plaintiff’s pain medications were refilled during this period. (Tr.
688-90.)
On October 8, 2009, plaintiff returned to Pike Medical Clinic for treatment
of her low back pain. Limited range of motion was noted. Plaintiff’s prescriptions
for Hydrocodone and OxyContin were refilled. It was noted that an MRI would be
scheduled in order to recertify plaintiff’s need for pain medications. Xanax was
also prescribed. (Tr. 687.)
An MRI taken of the lumbar spine on October 24, 2009, showed small
annular tears with bulging of the disc at both L4-5 and L5-S1. The disc bulges
were noted to be less prominent than on the study from March 2008, and no
adverse changes were seen. (Tr. 633.)
On November 4, 2009, Pike Medical Clinic prescribed Soma for neck
spasms. Plaintiff’s prescriptions for Hydrocodone and OxyContin were also
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refilled. (Tr. 685.) On December 3, the Clinic adjusted plaintiff’s medications for
depression and chronic low back pain. (Tr. 684.)
Plaintiff returned to Pike Medical Clinic on January 5, 2010, and reported
having to use her nitroglycerin more often than in the past. Plaintiff reported her
pain to be okay and that she sometimes takes Vicodin four times a day. Plaintiff’s
anxiety was noted to be controlled, and plaintiff’s affect was noted to be
appropriate. Plaintiff’s prescription for Hydrocodone was refilled for her lumbar
disc disease. Plaintiff’s prescriptions for Xanax and Robaxin were also refilled.
(Tr. 682.)
Chest x-rays taken January 25, 2010, showed no acute process. (Tr. 726.)
ECG testing that same date yielded normal results. (Tr. 724-25, 728.)
X-rays of the cervical spine taken on February 3, 2010, in response to
plaintiff’s complaints of pain and paresthesias in the left arm yielded no significant
findings. (Tr. 723.)
On February 4, 2010, plaintiff visited Dr. Arun Venkat for cardiology
consultation. Plaintiff reported having episodes of chest discomfort and mild
shortness of breath. Plaintiff also reported having occasional headaches, cough,
joint pain, and leg pain. Physical examination was unremarkable. Dr. Venkat
noted ECG results to be within normal limits. Dr. Venkat ordered follow up stress
and ECG testing and instructed plaintiff to continue with Plavix. Zocor was
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prescribed, and plaintiff was instructed to take aspirin daily. (Tr. 736-37.)
ECG testing on February 10, 2010, showed mild mitral regurgitation and
mild tricuspid regurgitation, but was other normal. (Tr. 721.)
Between February 3 and March 3, 2010, plaintiff visited Pike Medical Clinic
on four occasions for follow up and medication refills. On March 3, plaintiff’s
current medications were noted to be Amlopidine, Methocarbamol, Omeprazole,
Nitrostat, Bupropion, Metoprolol, OxyContin, Hydrocodone, Benzonatate, Zocor,
Plavix, aspirin, and Alprazolam. (Tr. 704-08.)
Plaintiff returned to Dr. Venkat on March 23, 2010, and reported having
occasional arm numbness and occasional chest pain lasting about one minute.
Plaintiff reported having no shortness of breath or syncope. Physical examination
was unremarkable. Dr. Venkat diagnosed plaintiff with chest pain history, CAD,
dyslipidemia, and hypertension. Plaintiff was advised to stop smoking. (Tr. 732.)
A stress test report dated April 8, 2010, showed significant EKG changes
diagnostic of ischemia, but no stress-induced ischemia was noted. Left ventricular
function was normal. (Tr. 861-62.)
Plaintiff returned to Dr. Venkat on April 22, 2010, and reported
experiencing chest pain about three times a week when walking up a hill and
occasional chest pain at rest. Plaintiff also reported mild shortness of breath,
palpitations, weakness, and joint pain. Plaintiff also reported that she experiences
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arm numbness when she lifts her hand, which Dr. Venkat opined could be related
to degenerative joint disease. Dr. Venkat added Imdur to plaintiff’s medication
regimen for hypertension and instructed plaintiff to monitor her chest pain. (Tr.
855-56.)
Plaintiff visited Pike Medical Clinic on two occasions in April 2010 for
follow up and medication refills. On April 30, plaintiff was advised not to overuse
her pain medications. (Tr. 744-46.)
On May 17, 2010, Michael Stacy, Ph.D., a psychological consultant for
disability determinations, completed a Psychiatric Review Technique Form in
which he opined that plaintiff’s depression and anxiety were not severe
impairments inasmuch as they caused no restrictions in plaintiff’s activities of
daily living; mild difficulties in maintaining social functioning and in maintaining
concentration, persistence, or pace; and resulted in no repeated episodes of
decompensation of extended duration. (Tr. 748-58.)
On June 10, 2010, plaintiff complained to Dr. Venkat that she continued to
have chest discomfort with activity, such as riding a bike about five blocks and
walking. Plaintiff reported shortness of breath when going up stairs. Plaintiff
reported exertional shortness of breath, dizziness, occasional palpitations,
weakness, headache, and cough. Physical examination was unremarkable. Given
plaintiff’s symptoms and lack of significant results from diagnostic testing, Dr.
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Venkat suggested that plaintiff undergo a coronary angiography. (Tr. 851.)
On June 24, 2010, plaintiff reported to Dr. Venkat that she had no chest pain
or shortness of breath. (Tr. 840.)
On July 29, 2010, plaintiff reported to Dr. Venkat that she had occasional
chest discomfort that improved with nitroglycerin. Plaintiff also reported
occasional shortness of breath, edema, joint pain, and dizziness. Dr. Venkat noted
a recent cardiac catheterization to show patent LAD stents. Plaintiff was
diagnosed with stable angina, possibly related to small vessel disease. Compliance
with medications was discussed. (Tr. 836.)
On October 29, 2010, plaintiff reported to Dr. Venkat that she had only rare
chest pain and mild shortness of breath with exertion. Physical examination was
unremarkable. Dr. Venkat stressed to plaintiff the importance of medication
compliance. (Tr. 832.)
Plaintiff returned to Dr. Venkat on February 17, 2011, and reported having
intermittent chest discomfort with occasional shortness of breath. Physical
examination was unremarkable. Dr. Venkat diagnosed plaintiff with stable angina
and instructed plaintiff to continue on her medications. (Tr. 822.)
Plaintiff was admitted to PCMH on May 25, 2011, with complaints of chest
discomfort with radiation to the left arm. Plaintiff’s past medical history was
noted. Plaintiff’s current medications were noted to be Zocor, Amlopidine,
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Metoprolol, Bupropion, Plavix, nitroglycerin, aspirin, Norco, and OxyContin.
EKG testing showed normal sinus rhythm and non-specific T-wave abnormalities.
Plaintiff’s chest pain resolved, and she was discharged on May 26 with a diagnosis
of atypical chest pain. Plaintiff was prescribed Cardizem and Isosorbide upon
discharge and was instructed to continue on her other medications. (Tr. 759-807.)
Myocardial perfusion tests performed on June 9, 2011, showed normal left
ventricular function and no stress-induced ischemia. ECG testing yielded normal
results. (Tr. 809-11.)
IV. Additional Evidence Before the Appeals Council4
On August 18, 2011, plaintiff reported to Dr. Venkat that she experienced
mild dyspnea, cough, palpitations, and leg pain. Plaintiff reported having no chest
pain. Physical examination was unremarkable. Dr. Venkat noted the results of
recent diagnostic testing to be essentially normal. (Tr. 918.)
An MRI taken of the lumbar spine on November 5, 2011, in response to
plaintiff’s complaints of left leg sciatica showed small focal central disk profusion
at L4-5 and slight annular disk bulging at L5-S1, asymmetric toward the right. (Tr.
915.)
In making its determination to deny review of the ALJ’s decision, the Appeals Council
considered additional evidence which was not before the ALJ. The Court must consider this
additional evidence in determining whether the ALJ's decision was supported by substantial
evidence. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v. Shalala, 23 F.3d
1441, 1444 (8th Cir. 1994).
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V. The ALJ's Decision
The ALJ found plaintiff to meet the insured status requirements of the Social
Security Act through June 30, 2011. The ALJ found that plaintiff had not engaged
in substantial gainful activity since March 1, 2009. The ALJ determined the
evidence to show that plaintiff had status-post stent placement in the left anterior
descending artery, degenerative disc disease of the lumbosacral spine and thoracic
spine, hypertension and hyperlipidemia controlled by medication, status-post right
fourth toe and left wrist fractures, and a history of mild depression and anxiety also
controlled by medication. The ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled an impairment listed
in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 64.) The ALJ found plaintiff to
have the RFC to perform work
except probably for lifting or carrying more than 10 pounds frequently
or more than 20 pounds occasionally; walking more than 2 hours out
of an 8-hour day; climbing of ropes, ladders or scaffolds; doing more
than occasional climbing of ramps and stairs or more than occasional
balancing, stooping, kneeling, crouching, or crawling; or having
concentrated or excessive exposure to unprotected heights or
dangerous moving machinery or to dust, fumes, chemicals,
temperature extremes, high humidity or dampness, and other typical
allergens, pollutants, and atmospheric irritants.
(Tr. 65.) The ALJ found there to be no credible, medically-established mental
limitations. The ALJ determined plaintiff not able to perform any of her past
relevant work. Considering plaintiff’s age, education, work experience, and RFC,
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the ALJ determined vocational expert testimony to support a finding that plaintiff
could perform light work as it exists in significant numbers in the national
economy, such as retail marker, folding machine operator, and cafeteria attendant;
as well as sedentary work, such as document preparer, circuit board assembler, and
laminator. The ALJ thus found plaintiff not to be under a disability through the
date of the decision. (Tr. 65-66.)
VI. Discussion
To be eligible for DIB and SSI under the Social Security Act, plaintiff must
prove that she is disabled. 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.
1992). The Social Security Act defines disability as the "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 will be declared disabled
"only if [her] physical or mental impairment or impairments are of such severity
that [she] is not only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B).
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To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding
whether the claimant is engaged in substantial gainful activity. If the claimant is
working, disability benefits are denied. Next, the Commissioner decides whether
the claimant has a “severe” impairment or combination of impairments, meaning
that which significantly limits her ability to do basic work activities. If the
claimant's impairment(s) is not severe, then she is not disabled. The Commissioner
then determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, she is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform her past relevant work. If so, the claimant is not disabled. Finally, the
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 disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 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). Substantial evidence is less than a preponderance but enough that a
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reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff's
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
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which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also
have supported an opposite decision.” Weikert v. 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).
In this cause, plaintiff challenges the manner and method by which the ALJ
determined her RFC, arguing that the ALJ provides no rationale to support his
conclusions, that no medical evidence supports the RFC determination given the
lack of medical RFC assessments in the record, and that substantial evidence fails
to support a finding that plaintiff can perform sustained work activities. Plaintiff
also claims that the ALJ erred in his analysis finding plaintiff’s subjective
complaints not to be credible. Contrary to plaintiff’s assertions, a review of the
ALJ’s decision shows the ALJ to have thoroughly discussed and properly analyzed
the substantial evidence of record supporting his credibility and RFC
determinations. For the following reasons, plaintiff’s claims otherwise fail.
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A.

Credibility
Before determining a claimant’s RFC, the ALJ must first evaluate the

claimant’s credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In so doing, the ALJ must consider
all evidence relating to the claimant’s subjective complaints, including the
claimant’s prior work record and third party observations as to the claimant's daily
activities; the duration, frequency and intensity of the symptoms; any precipitating
and aggravating factors; the dosage, effectiveness and side effects of medication;
and any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (subsequent history omitted). When rejecting a claimant's subjective
complaints, the ALJ must make an express credibility determination detailing his
reasons for discrediting the testimony. Renstrom v. Astrue, 680 F.3d 1057, 1066
(8th Cir. 2012); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). “It is not
enough that inconsistencies may be said to exist, the ALJ must set forth the
inconsistencies in the evidence presented and discuss the factors set forth in
Polaski when making credibility determinations.” Cline, 939 F.2d at 565; see also
Renstrom, 680 F.3d at 1066; Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir.
1998). Where an ALJ explicitly considers the Polaski factors but then discredits a
claimant’s complaints for good reason, the decision should be upheld. Hogan v.
Apfel, 239 F.3d 958, 962 (8th Cir. 2001); see also Casey v. Astrue, 503 F.3d 687,
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696 (8th Cir. 2007). The determination of a claimant’s credibility is for the
Commissioner, and not the Court, to make. Tellez, 403 F.3d at 957; Pearsall, 274
F.3d at 1218.
Here, plaintiff claims that the ALJ merely invoked Polaski in his decision
and failed to apply the relevant factors in weighing the credibility of her subjective
complaints. Plaintiff’s claim is without merit.
In his written decision, the ALJ set out numerous inconsistencies in the
record to support his determination that plaintiff’s subjective complaints were not
credible. First, the ALJ noted that plaintiff’s impairments pre-dated her alleged
onset of disability for a period of years and that plaintiff was able to work during
that time. The ALJ noted the medical evidence to show plaintiff’s conditions not
to have progressed subsequent to her onset date and, indeed, that plaintiff’s
impairments were stable with only minor exacerbations that resulted in no
significant limitations or complications. See, e.g., Goff v. Barnhart, 421 F.3d 785,
792-93 (8th Cir. 2005) (fact that claimant worked with impairments for over three
years, coupled with absence of evidence of significant deterioration, demonstrates
that impairments are not disabling in the present); Brown v. Barnhart, 390 F.3d
535, 540 (8th Cir. 2004) (impairment cannot be considered disabling if it can be
controlled by treatment or medication). The ALJ also noted that no physician
implied that plaintiff was incapacitated or placed any restrictions on plaintiff that
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exceeded those in the RFC. See, e.g., Forte v. Barnhart, 377 F.3d 892, 896 (8th
Cir. 2004); Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996). The ALJ further
noted the treatment rendered for plaintiff’s impairments, and specifically, that
plaintiff’s last inpatient hospitalization for her heart condition occurred in June
2007, that her last procedure for back pain occurred in June 2006, and that physical
therapy for her wrist fracture ended in April 2009. E.g., Spradling v. Chater, 126
F.3d 1072, 1075 (8th Cir. 1997) (lack of aggressive treatment inconsistent with
complaints of disabling pain). The ALJ also noted plaintiff’s testimony that
medication reduced her pain to a level two or three (Tr. 58) and that there was no
documented record that plaintiff experienced any significant adverse side effects
from medications (Tr. 62). Brown, 390 F.3d at 540. In addition, the ALJ noted the
evidence to show that plaintiff did not exhibit signs consistent with chronic and
severe musculoskeletal pain, such as muscle atrophy, muscle spasms, neurological
deficits, and/or an inability to ambulate. See McClees v. Shalala, 2 F.3d 301, 30203 (8th Cir. 1993). To the extent plaintiff reported that her daily activities were
restricted because of her disabling impairments, the ALJ summarized plaintiff’s
description of her activities, which included grocery shopping, driving, performing
light household chores, reading, watching television, and fishing and swimming
with her children (Tr. 58), and found any claimed restrictions to be self-imposed
rather than medically induced (Tr. 62). See, e.g., Spradling, 126 F.3d at 1075
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(engaging in hunting, fishing, cooking, cleaning, driving, and visiting friends
inconsistent with complaints of disabling pain); Onstead v. Sullivan, 962 F.2d 803
(8th Cir. 1992) (engaging in light housework, cooking, watching television,
reading, fishing, grocery shopping, and playing cards inconsistent with complaints
of disabling pain). The ALJ also noted plaintiff to testify that she got along well
with other people and that there existed no documented evidence of frequent
crying spells, memory loss, or panic attacks. See, e.g., Jones v. Astrue, 619 F.3d
963, 975-76 (8th Cir. 2010) (no documented evidence supported claimant’s
claimed anxiety-induced limitations); Cox v. Astrue, 495 F.3d 614, 618-20 (8th
Cir. 2007) (successful social relationships inconsistent with disabling mental
impairment). These reasons to discredit plaintiff’s subjective complaints are
supported by substantial evidence on the record as a whole.
To the extent plaintiff argues that Mr. Shealor’s testimony supported her
reports of limited activities, the ALJ found such testimony not to be credible
inasmuch as, like plaintiff’s, it was inconsistent with the other evidence of record.
This finding was not error. See Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir.
2011). The ALJ further determined not to credit Mr. Shealor’s testimony
inasmuch as Mr. Shealor had financial stake in the outcome of the case and was
influenced by his affection for plaintiff and his natural tendency to believe and
support her. These findings were likewise not error. Id.
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A review of the ALJ’s decision shows that, in a manner consistent with and
as required by Polaski, the ALJ considered plaintiff’s subjective complaints on the
basis of the entire record and set out numerous inconsistencies that detracted from
her credibility. Because the ALJ’s determination not to credit plaintiff’s subjective
complaints is supported by good reasons and substantial evidence, this Court must
defer to the ALJ’s credibility determination. Goff, 421 F.3d at 793; Vester v.
Barnhart, 416 F.3d 886, 889 (8th Cir. 2005); Gulliams v. Barnhart, 393 F.3d 798,
801 (8th Cir. 2005).
B.

RFC Determination
A claimant’s RFC is what she can do despite her limitations. Dunahoo v.

Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). The ALJ determines a claimant’s RFC
based on all relevant, credible evidence in the record, including medical records,
the observations of treating physicians and others, and the claimant’s own
description of her symptoms and limitations. Goff, 421 F.3d at 793; Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1545(a),
416.945(a). Because a claimant’s RFC is a medical question, some medical
evidence must support the ALJ’s RFC determination. Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010); Eichelberger, 390 F.3d at 591; Hutsell v. Massanari,
259 F.3d 707, 711-12 (8th Cir. 2001). Accordingly, the record must contain
medical evidence sufficient to determine the claimant’s RFC at the time of the
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hearing. Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). While the
responsibility for determining RFC rests with the ALJ, the claimant nevertheless
retains the burden to prove her RFC. Eichelberger, 390 F.3d at 591; Baldwin v.
Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall, 274 F.3d at 1217-18.
As discussed below, a review of the ALJ’s decision and the relevant
evidence of record shows the ALJ to have engaged in the proper analysis to
determine plaintiff’s RFC at the time of his decision. See SSR 96-8p, 1996 WL
374184 (Soc. Sec. Admin. July 2, 1996). Some medical evidence supports this
determination and, for the following reasons, the determination is supported by
substantial evidence on the record as a whole.
First, the ALJ thoroughly discussed the relevant medical evidence of record.
With respect to plaintiff’s heart impairment, the ALJ set out the history of
plaintiff’s heart attack and related stent placement in 1999, with subsequent
bradycardia and related hospitalization in June 2007. The ALJ noted that while
plaintiff had periodic complaints of chest pain thereafter, diagnostic testing
consistently yielded essentially normal results and showed no progression of heart
disease. Indeed, as noted by the ALJ, the medical evidence of record shows that
during plaintiff’s claimed period of disability, plaintiff’s heart condition was
mostly stable. With respect to plaintiff’s musculoskeletal impairment, the ALJ
noted diagnostic testing in 2006 to show mild kyphosis and moderate disc bulging
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for which plaintiff underwent epidural injections. The ALJ noted that x-rays in
February 2008 showed only mild disk disease and that a follow up MRI in March
2008 yielded results consistent with those from 2006. Finally, the ALJ noted that
x-rays of the lumbosacral spine in July 2009 were negative and that the October
2009 MRI of the spine showed the disc bulging to be less prominent than in earlier
studies. As discussed supra, the ALJ observed that all of these impairments
existed prior to the alleged onset of disability, that is, March 1, 2009, and that
plaintiff ably worked with such impairments. The ALJ also noted, and the record
shows, that plaintiff’s impairments did not progress or deteriorate on or after the
alleged onset date. See Goff, 421 F.3d at 793 (RFC supported by substantial
evidence where claimant effectively worked with impairment and there was no
indication that condition deteriorated). Indeed, the record shows noted
improvement and stabilization. To the extent the ALJ did not have before him the
November 2011 MRI at the time of his decision, the results of the MRI
demonstrate nothing greater in severity than prior images and thus would have
done nothing to alter the ALJ’s analysis of the medical evidence. The ALJ also
noted evidence of plaintiff’s acute illnesses and injuries – including isolated bouts
of bronchitis and pneumonia, wrist fracture, and toe fracture – finding that none of
these conditions resulted in long-term limitations or complications. Finally, the
ALJ noted plaintiff’s office visits in 2009 and 2010 to be primarily for medication
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refills, including medication for depression. Although plaintiff contends that the
ALJ failed to consider the significant medications she took for pain and her mental
health, a review of the decision shows the ALJ to have considered the effects of
such medications, and specifically, that plaintiff testified that her pain medications
were effective (Tr. 58) and had no adverse side effects (Tr. 62), and that treatment
notes showed plaintiff’s mental impairment to be stable in January 2010 (Tr. 60).
Regardless, the fact that plaintiff regularly took pain medication for her back pain
is not in itself inconsistent with an RFC to perform work where the medical
evidence showed plaintiff’s condition to be mild. See Steed v. Astrue, 524 F.3d
872, 875-76 (8th Cir. 2008).
The ALJ also discussed the nonmedical evidence of record. The ALJ
specifically noted plaintiff’s educational and work history as well as her current
living conditions. As discussed at length supra, the ALJ noted plaintiff’s
subjective complaints, Mr. Shearor’s testimony as to plaintiff’s activities, and the
consistency of such complaints and observations with other evidence of record.
The ALJ also noted plaintiff’s own testimony regarding her exertional abilities,
including lifting up to twenty-five pounds, sitting up to ninety minutes at one time,
walking about two blocks at one time, and experiencing pain with bending or stepclimbing.
Upon conclusion of his discussion of specific medical facts, nonmedical
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evidence, and the consistency of such evidence when viewed in light of the record
as a whole, the ALJ assessed plaintiff’s RFC based on the relevant, credible
evidence and specifically set out plaintiff’s exertional and non-exertional
limitations and the effect of such limitations on plaintiff’s ability to perform
specific work-related activities. Indeed, the ALJ included specific limitations
consistent with plaintiff’s claimed ability to lift and walk as well as with her
claimed postural limitations, including those relating to kneeling and climbing
stairs. Cf. Baldwin, 349 F.3d at 557 (exertional restrictions in RFC consistent with
claimant’s testimony as to such). Plaintiff presents no evidence or argument
demonstrating that she was more restricted than as determined by the ALJ. An
ALJ is not required to disprove every possible impairment. McCoy v. Astrue, 648
F.3d 605, 612 (8th Cir. 2011).
Although plaintiff argues that the record lacked opinion evidence upon
which the ALJ could make an RFC determination, the mere lack of opinion
evidence in itself is not a sufficient basis upon which to find an ALJ’s decision not
supported by substantial evidence where, as here, the ALJ thoroughly and properly
considered all of the available medical and testimonial evidence of record in
determining plaintiff’s RFC. Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir.
2004).
The ALJ properly established plaintiff’s RFC based upon all the record
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evidence in this cause, including medical and testimonial evidence. Because the
record contains some medical evidence that supports the RFC and substantial
evidence on the record as a whole supports the determination, the ALJ did not err.
Baldwin, 349 F.3d at 558; Dykes v. Apfel, 223 F.3d 865, 866-67 (8th Cir. 2000)
(per curiam).
VI. Conclusion
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled through the date of his
decision is supported by substantial evidence on the record as a whole, and
plaintiff’s claims of error are denied.
Therefore,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 18th day of February, 2014.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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