Abuirqeba v. Astrue

Filing 29

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is affirmed.A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 11/8/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TAWFEEQ J. ABU IRQEBA,

)
)
Plaintiff,
)
)
vs.
)
)
1
)
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:10CV1592 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
applications for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq, and his application for supplemental
security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381, et seq. For
the reasons set forth below, the Court will affirm the Commissioner's denial of
Plaintiff's applications.
Facts and Background
Plaintiff was 48 years old at the time of the hearing. Plaintiff was born in

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

Iraq where he completed high school and some post secondary schooling. He had
worked as a teacher in Iraq. In 1993, Plaintiff moved to the United States. He has
some English knowledge, although he is not entirely fluent. Plaintiff worked at
several jobs from 1993 through February 28, 2006. Plaintiff made paper flowers,
worked as a cook and dishwasher at various places. The ALJ found Plaintiff had
the severe impairments of: degenerative joint disease of the right foot, minimal
osteoarthritis changes of the right knee, bilateral trigger thumbs, and probable
irritable bowel syndrome, bronchial asthma and hypothyroidism controlled by
medication. At the May 4 , 2009 hearing2, Plaintiff testified that he is married and
has two dependent children. Plaintiff testified that he relies on his brother and a
21 year old son for some financial support. He no longer works. Plaintiff testified
that he cannot stand more than five minutes, walk more than a block at a time,
bend much at the waist or climb more than five steps without pausing because of
leg pain and asthma. Plaintiff was shot in the right leg and foot during the war in
Iraq. He testified he has persistent joint pain in his lower right extremity.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq. And XVI of the Act, 42 U.S.C. §
1381, et seq was denied on January 15, 2008. On October 26, 2009, the ALJ

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A hearing was held on November 15, 2008 wherein the ALJ determined that Plaintiff
should be examined and his medical records should be reviewed.
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issued an unfavorable decision. On June 24, 2010, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision. Thus, the decision of the ALJ
stands as the final decision of the Commissioner.
Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable 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 twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011)
(discussing the five-step process). At Step One, the ALJ determines whether the
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claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at
611. At Step Two, the ALJ determines whether the claimant has a severe
impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will
find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step
process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545
(a) (1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by
comparing the claimant's RFC with the physical and mental demands of the
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claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can
perform his past relevant work, he is not disabled; if the claimant cannot, the
analysis proceeds to the next step. Id.. At Step Five, the ALJ considers the
claimant's RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the
claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at
611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
at Step One that Plaintiff had not engaged in substantial gainful activity since
February 28, 2006, the alleged onset date. At Step Two, the ALJ found that
Plaintiff had the following severe impairments: degenerative joint disease of the
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right foot, minimal osteoarthritis changes of the right knee, bilateral trigger
thumbs, and probable irritable bowel syndrome, bronchial asthma and
hypothyroidism controlled by medication.
At Step Three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the impairments
in Appendix 1, Subpart P, Regulations No. 4.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to lift or carry 20 pounds frequently or more than 50 pounds occasionally,
stand one hour, walk 30 minutes and sit 8 hours at a time, stand 4 hours, walk one
hour and sit 8 hours out of an 8 hour work day. Plaintiff was determined to be
able to occasionally perform operations with his right foot, occasionally climb and
was unable to work more than occasionally at unprotected heights or around
dangerous moving machinery, or around dust, fumes, chemicals, temperature
extremes, high humidity or dampness, or other typical allergens, pollutants, and
atmospheric irritans, pursuant to 20 CFR 404.1545 and 416.945. The ALJ
determined that Plaintiff could perform sedentary work with the listed limitations.
At Step Four, the ALJ determined that Plaintiff was incapable of performing
his past relevant work, and that his past relevant work skills were not transferable.
At Step Five, the ALJ determined that there are jobs that exist in significant
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numbers in the national economy that Plaintiff can perform. The ALJ therefore
determined that Plaintiff had not been under a disability from the onset date
through the date of the decision.
Standard For Judicial Review
The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports
the Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent
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positions from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638 F.3d
860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)). The Court should disturb the administrative decision only if it falls
outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In his appeal of the Commissioner's decision, Plaintiff makes the following
arguments: (1) the ALJ erred in determining RFC because the ALJ made
inconsistent findings regarding Plaintiff’s standing/walking limitations,
improperly analyzed certain medical evidence and made improper assumptions
about certain impairments; (2) the ALJ violated the duty to develop a full and fair
record by failing to order appropriate consultative examinations regarding
Plaintiff’s thumb conditions and possible mental issues; (3) the ALJ erred
regarding Plaintiff’s credibility because the ALJ failed to make a sufficiently
specific finding regarding Plaintiff’s statements regarding the severity, persistence
and limiting effects of his symptoms, and in failing to address the credibility
factors established by the applicable cases; (4) the ALJ erred in determining the
level of Plaintiff’s comprehension of English in light of numerous apparent
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difficulties in the hearing transcript regarding such comprehension.
RFC Determination
A claimant's RFC is the most an individual can do despite the combined
effects of all of his or her credible limitations. See 20 C.F.R. § 404.1545. An
ALJ's RFC finding is based on all of the record evidence, including the claimant's
testimony regarding symptoms and limitations, the claimant's medical treatment
records, and the medical opinion evidence. See Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir.2010); see also 20 C.F.R. § 404.1545; Social Security Ruling (SSR)
96–8p. An ALJ may discredit a claimant's subjective allegations of disabling
symptoms to the extent they are inconsistent with the overall record as a whole,
including: the objective medical evidence and medical opinion evidence; the
claimant's daily activities; the duration, frequency, and intensity of pain; dosage,
effectiveness, and side effects of medications and medical treatment; and the
claimant's self-imposed restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir.1984); 20 C.F.R. § 404.1529; SSR 96–7p.
Here, the ALJ considered Plaintiffs impairments and did determine that they
reduced his ability to stand, walk and climb stairs. Thus, the ALJ determined that
Plaintiff could only perform sedentary work, with certain limitations, i.e., he
should only lift 50 pounds occasionally and 20 pounds frequently; he should stand
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only four hours and walk thirty minutes in an 8 hour work day. Plaintiff’s
argument that the ALJ’s determination contained contradictions is without merit.
The ALJ found that Plaintiff could only stand for one hour at a time, but he could
stand a total of 4 hours in an 8 hour work day. The ALJ’s determination that
Plaintiff should not perform prolonged standing or walking is consistent with his
determination that Plaintiff is capable of walking for a total of 4 hours and 30
minutes per work day.
Likewise, Plaintiff’s argument that the ALJ discounted positive findings
specifically those involving the right foot is unsupported by the record. Plaintiff’s
medical records establish that the treatment of his right foot entailed conservative
treatment such as topical anesthetic and an orthotic shoe; measures which are
indicative of mild conditions as opposed to severe, chronic pain in Plaintiff’s right
foot.
With respect to Plaintiff’s argument that the ALJ failed to consider nonexertional limitations based on his sadness and fatigue, as Defendant correctly
argues, Plaintiff did not assert any mental impairments in his application, in the
hearing, and there are no medical records which evidence any mental impairments.
The ALJ’s exclusion of these non-exertional impairments was entirely appropriate.

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Duty to Develop Record
An ALJ has a duty to develop the record fully and fairly. Cox v. Astrue, 495
F.3d 614, 618 (8th Cir.2007); Sneed v. Barnhart, 360 F.3d 834, 838 (8th
Cir.2004). Because an administrative hearing is a non-adversarial proceeding, the
ALJ must develop the record fully and fairly in order that “ ‘deserving claimants
who apply for benefits receive justice.’ ” Wilcutts v. Apfel, 143 F.3d 1134, 11387
(8th Cir.1998). “There is no bright line rule indicating when the Commissioner
has or has not adequately developed the record; rather, such an assessment is made
on a case-by-case basis.” Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir.2008)
(citation omitted).
An ALJ may order medical examinations and tests when the medical records
presented to him or her constitute insufficient medical evidence to determine
whether the claimant is disabled. Barrett v.. Shalala, 38 F.3d 1019, 1023 (8th
Cir.1994) (citation omitted); see also 20 C.F.R. § 404.1519a(a)(1); 20 C.F.R. §
404.1519a(b); 20 C.F.R. §§ 404.1527(f)(2)(iii) and 416.927(f)(2)(iii).
Under the Act, Plaintiff has the burden of proving disability. Snead, 360
F.3d at 836; see also 20 C.F.R. §§ 404.1512(a), 416.912(a). In addition, the
regulations clearly state that Plaintiff has the responsibility for providing medical
evidence: “You must provide medical evidence showing that you have an
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impairment and how severe it is during the time you say that you are disabled.” 20
C.F.R. § 404.1512. An ALJ has a basic obligation to determine the facts relevant
to his decision and to learn a claimant's own version of the facts. See Heckler v.
Campbell, 461 U.S. 458, 471 (1983) (Brennan, J., concurring); Dixon v. Heckler,
811 F.2d 506, 510 (10th Cir.1987). However, the ALJ's duty to develop the record
does not require him to act as the claimant's advocate. See Battles v. Shalala, 36
F.3d 43, 45 (8th Cir.1994).
The ALJ thoroughly reviewed Plaintiff’s medical records. Plaintiff made no
claim of mental impairment. The ALJ is not obliged to investigate claims which
have not been presented as a basis of Plaintiff’s claim of disability. Mouser, 545
F.3d at 639.
Plaintiff also argues that the ALJ should have ordered testing with regard to
Plaintiff’s thumbs. As the Commissioner correctly notes, Dr. Park noted no
significant impairment to Plaintiff’s hands. Dr. Park’s examination report show
that Plaintiff raised a thumb pain complaint, but no range of motion limitations
were observed. Furthermore, Plaintiff failed to contact Dr. DeBartolo per
instructions after the injections he received.
Given the evidence in the record, and this Court's deference to the ALJ in
deciding whether the record is fully developed, the Court finds that the ALJ did
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not err by not sending Plaintiff for a psychological evaluation. The ALJ met his
basic duty to fully and fairly develop the record as to the material issues and
properly evaluated the record as a whole in finding Plaintiff not disabled.
Ultimately, the claimant bears the burden of proving disability
and providing medical evidence as to the existence and severity of an
impairment. Snead, 360 F.3d at 836; 20 C.F.R. § 404.1512. Past this
point, “an ALJ is permitted to issue a decision without obtaining
additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ's decision.” Naber v. Shalala,
22 F.3d 186, 189 (8th Cir.1994).
Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).
Plaintiff’s Credibility
When analyzing a claimant's subjective complaints of pain, the ALJ must
consider the five factors from Polaski v. Heckler: (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;
and (5) functional restrictions. See 739 F.2d 1320, 1322 (8th Cir.1984); see also
20 C.F.R. §§ 404.1529, 416.929. “The ALJ [is] not required to discuss
methodically each Polaski consideration, so long as he acknowledge[s] and
examine[s] those considerations before discounting [the claimant's] subjective
complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.2000). “Because the ALJ
[is] in a better position to evaluate credibility, we defer to his credibility
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determinations as long as they [are] supported by good reasons and substantial
evidence.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.2006).
As the Commissioner correctly argues, the ALJ articulated the
inconsistencies on which he relied in discrediting Plaintiff’s subjective complaints.
The objective medical evidence vs. Plaintiff’s allegations; the infrequency of
treatment; Plaintiff’s statements to his physicians that treatments were successful
(gastrointestinal distress); 10 month gap in medical treatment from late December
2007 to November 2008; no further record of treatment after consulting with Dr.
Karges to obtain orthotic shoes in December 2007; no recommendations from any
medical provider for surgery, physical therapy or a pain management clinic; no
inpatient hospitalizations.
Plaintiff’s medical records do not support Plaintiff’s claims. MRI and x-ray
examinations fail to reveal any significant abnormalities with Plaintiff’s right leg
or thumbs. None of Plaintiff’s physicians ever placed any long term restrictions
on Plaintiff, and Plaintiff did not require the use of assistive devises. The record
supports the finding that Plaintiff’s complaints were not entirely credible.
The Court finds that the ALJ's determination was based on substantial
evidence on the record and properly included only Plaintiff's credible limitations.
See Wildman, 596 F.3d at 966.
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ALJ erred in determining the level of Plaintiff’s comprehension of English in
light of numerous apparent difficulties in the hearing transcript regarding
such comprehension
Plaintiff asserts that his testimony establishes that he was not able to
effectively communicate with the interpreter, and that the ALJ failed to
sufficiently discuss such problems or conduct a sufficiently thorough analysis of
Plaintiff’s comprehension of English. The Court has reviewed the entirety of the
transcripts of the hearings and finds this basis for reversal completely
unfounded,baseless, and without merit. Plaintiff was able to articulate his
complaints and understand the questions posed throughout the entirety. Difficulty
with certain words and clarification of them do not equate with incomprehension.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination is supported by substantial evidence on the record as a whole, and
therefore, the decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
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Order is entered this same date.
Dated this 8th day of November, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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