Haley v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 10/12/2012. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THOMAS D. HALEY,
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
Case No. 4:11CV628 FRB
MEMORANDUM AND ORDER
This matter is on appeal from an adverse ruling by the
Commissioner of 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).
Disability Insurance Benefits (“DIB”) under Title II of the Act,
alleging that he became unable to work due to disability on May 1,
(Administrative Transcript (“Tr.”) 76-89).1
administrative law judge (“ALJ”) which was held on January 20,
The original certified administrative transcript filed by
defendant in this matter contained information relating to a
person other than plaintiff Thomas Haley. The original certified
administrative transcript was subsequently redacted by defendant,
and a supplemental transcript was filed. See (Docket Nos. 14,
21, and 22). When citing to the administrative record, the
undersigned will differentiate between the original certified
administrative transcript and the supplemental transcript.
(Supplemental Administrative Transcript (“S.Tr.”) 714-35).
On February 25, 2010, the ALJ issued a decision in which he
determined that plaintiff was not disabled under the Act. (Tr. 1119).
Plaintiff sought review from defendant agency’s Appeals
Council, which denied his request on November 16, 2010. (Tr. 1-3).
The ALJ’s decision thus stands as the Commissioner’s final decision
under 42 U.S.C. § 405(g).
Plaintiff, proceeding pro se, brings the
instant action in this Court, challenging that decision.
Evidence Before The ALJ
During the administrative hearing, plaintiff responded to
questions from his attorney.2
Plaintiff testified that he first
began feeling ill in 1998, at which time he experienced fatigue and
returning in 1999.
Plaintiff testified that he took
Plaintiff’s attorney then
asked plaintiff to describe his drinking history.
testified, “[w]ell, to put it bluntly, it’s like nobody found me
under a bridge some bridge some place [sic].
ate breakfast, and I went to work.
I mean I got up, I
I might have a couple after
work and that was basically it.” (S.Tr. 721).
that he stopped drinking in February of 2000, but also testified
Plaintiff was represented by counsel during the
administrative proceedings, and is proceeding pro se in this
that he was “not saying now and then I didn’t have a beer or what
not but for the most part, you know, I didn’t stop at the bar after
work or - - .”
Plaintiff then responded to questions from the ALJ.
diuretic medication and lost weight, he felt good for a month or
The ALJ and plaintiff then had a lengthy
exchange regarding plaintiff’s alleged onset date.
The ALJ asked
plaintiff what symptoms he was having at the time of his alleged
onset date, May 1, 1998, that led him to believe he could not work,
and plaintiff replied, “fatigue, tired, somewhat despondent, then
the weight gain.”
Plaintiff testified that he saw a
doctor who diagnosed him with ascites,3 and was then referred to
testified that, at that time, he was paying for his care with his
own money, and he “felt good so I didn’t think that much more about
Plaintiff testified that he worked “a little bit but
then the whole thing started all over again” a couple of months
Plaintiff testified that he filed an application for
Social Security Income in July or August of 2001.
Plaintiff testified that, between May 1, 1998 and June 30, 2000, he
The term “acites” refers to the accumulation of serous
fluid in the peritoneal cavity. STEDMAN’S MEDICAL DICTIONARY (27th
ed. 2000), available at STEDMAN’S 34140 (Westlaw).
would have been unable to do any full-time work because, due to the
activity, he would have missed more than two days of work each
month, and would have been unable to hold a job.
Plaintiff testified that his condition was developing faster, and
that he was depressed because he could not do anything about it.
He stated that he had read and educated himself about his
Medical Evidence Generated Before The Expiration Of
Plaintiff’s Insured Status
plaintiff was told, in April of 1997, that his liver enzymes were
abnormal and that he “must stop alcohol.”
Records from Arthur Gale, M.D., show that plaintiff
presented for treatment on May 1, 1998 with complaints of abdominal
Dr. Gale noted that plaintiff had
alcohol on his breath, and noted that he discussed with plaintiff
the severity of his alcohol abuse.
CT scan performed on May
5, 1998 revealed moderate ascites and probable cirrhosis, and
plaintiff was referred to David Jick, M.D., a Gastroenterologist.
The following summary includes medical evidence dated after
June 30, 2000, plaintiff’s last date insured, and also includes
medical evidence submitted by plaintiff.
Plaintiff saw Dr. Jick on May 15, 1998, and reported that
he drank ½ pint to one pint of alcohol per day.
Jick noted the presence of alcohol on plaintiff’s breath.
distention a few weeks ago but that now he felt “great” and had no
Dr. Jick noted that the ascites had
Plaintiff returned to Dr. Jotte in early March, 1999
with complaints of sore throat and cough with dark sputum.
Plaintiff returned on March 4, 1999 and reported he was not
complaints of a dry cough, sore throat, and head congestion. (Id.)
Dr. Jotte noted that plaintiff smelled of alcohol.
Jotte diagnosed acute bronchitis and prescribed medication.
Dr. Jotte’s records include a notation dated January 3,
2000, at which time plaintiff was apparently given medication to
control a productive cough.
On June 8, 2000, plaintiff saw Dr. Jotte and reported
that he had been gaining weight and retaining fluid, and that his
abdomen and ankles had been swelling.
reported that he was a smoker.
He reported that he had
reduced his alcohol intake to around four beers per day, and that
he “[h]ad been up to ‘too many to count’”.
He was not
Dr. Jotte diagnosed plaintiff with
Dr. Jotte’s records indicate that he
prescribed Furosemide5 and Spironolactone.6
Medical Evidence Generated
Plaintiff’s Insured Status
On November 15, 2000, plaintiff returned to Dr. Jotte
with complaints of increasing ankle edema over the past month.
Plaintiff stated that he had been “off diuretics for
quite some time.”
Plaintiff stated he had cut
back to drinking about four drinks per day, and that some days he
did not drink at all.
Plaintiff stated that he had consumed
three beers before the office visit.
plaintiff’s abdomen was distended and he had lower extremity edema.
Dr. Jotte diagnosed plaintiff with alcoholic liver
(Spironolactone), and referred plaintiff to Raymond F. Mohrman,
Plaintiff saw Dr. Mohrman on November 29, 2000, and Dr.
Mohrman noted that “over the past couple of months, [plaintiff] has
had a marked increase in his weight, abdominal girth, and marked
Dr. Mohrman noted that the most
,4 Furosemide and Spironolactone are diuretics. They are
used to reduce the swelling and fluid retention caused by various
medical problems, including heart or liver disease. They are also
used to treat high blood pressure.
This record is Dr. Mohrman’s January 1, 2001 letter to Dr.
Jotte, in which Dr. Mohrman describes to Dr. Jotte the treatment
he provided to plaintiff in November and December of 2000. (Tr.
likely cause of plaintiff’s liver disease is “chronic alcohol
consumption which has been present for greater than 20 years.”
Dr. Mohrman noted that plaintiff had discontinued taking
Furosemide and Spironolactone “for inapparent reasons.”
Upon examination on November 29,
2000, plaintiff weighed 250
pounds; had “marked spider angiomata” (an abnormal collection of
blood vessels under the skin), jaundice, yellowing of the sclera of
the eyes, 4+ pitting edema, and 4+ ascites.
On December 5, 2000, Dr. Mohrman performed paracentesis.8
(Tr. 163, 560-62).
In his report of this date,9 Dr. Mohrman noted
that plaintiff had been told to stop drinking but did not do so,
and that it was most likely that his liver disease was caused by
Dr. Mohrman noted that Dr. Jotte
had prescribed Furosemide and Spironolactone, but that plaintiff
took the medication for only a couple of days before stopping.
Physical examination before the paracentesis procedure was
performed yielded findings similar to those noted on November 29,
Dr. Mohrman noted that paracentesis was necessary to
manage plaintiff’s fluid overload and to rule out possible causes,
but that it was “most likely all ascites secondary to liver
Also called “abdominal tap,” paracentesis is a procedure
during which a tap needle is inserted into the abdomen via which
fluid is removed from the abdominal cavity.
More than one copy of this report appears in the
administrative transcript, and plaintiff also submitted an
annotated copy with his brief. For purposes of simplicity, in
this summary of the medical information of record, the
undersigned will cite only to the copy of the report which
appears in the administrative transcript at pages 560-62.
Following the paracentesis, Dr. Mohrman noted that a
total of six liters of fluid were removed.
plaintiff with advanced cirrhosis questionably secondary to chronic
alcoholism, which was manifesting itself as jaundice and marked
Furosemide and Spironolactone, and wrote that he had had a very
long discussion with plaintiff regarding his diagnosis, the cause
of his liver disease, and his prognosis.
that plaintiff “seem[ed] to have very little insight into his liver
disease, its severity and the fact that he is a chronic alcoholic.”
Dr. Mohrman wrote that he suspected that plaintiff
would have difficulty abstaining from alcohol, and that, while he
rehabilitation, plaintiff did not feel he needed it. (Tr. 561-62).
Dr. Mohrman wrote that plaintiff’s overall prognosis was “very
On December 20, 2000, plaintiff returned to Dr. Mohrman
and reported progressive improvement and steady weight loss since
undergoing paracentesis. (Tr. 164). Upon examination, Dr. Mohrman
noted that plaintiff’s ascites were markedly decreased, and he had
only trace to 1+ pitting edema in his lower extremities.
Plaintiff reported that he had “not been entirely compliant with
Dr. Mohrman opined that plaintiff had
very advanced cirrhotic liver disease, most likely secondary to
alcohol, and that plaintiff’s major complicating factor was ascites
and fluid overload, which was being managed with diuretics and
On June 30, 2001, plaintiff was admitted to Barnes-Jewish
Hospital with complaints of weakness and decreased appetite over
He complained of a gradual increase in
abdominal girth, and was noted to have a large protrudent abdomen
with a large umbilical hernia.
Plaintiff was admitted to
the hospital, where his fluids were restricted and he was started
on a saline drip.
Plaintiff did not improve, and
underwent paracentesis which yielded five liters of fluid which was
tested and revealed no likely infectious etiology for plaintiff’s
[plaintiff’s] non-compliance with fluid restrictions,” his sodium
level began to rise.
On July 6, 2001, plaintiff underwent
a “TIPS” procedure,10 and was discharged on July 8, 2001.
At the time of discharge, it was noted that, while the
results of laboratory testing were not satisfactory, “it was felt
due to [plaintiff’s] liver failure that these were relatively
steady state conditions which would not improve with further
TIPS, which stands for Transjugular Intrahepatic
Portosystemic Shunt, is a procedure via which a shunt is inserted
to create new connections between blood vessels in the liver and
allow blood to flow more freely. It is performed via a catheter
inserted into the jugular vein. This procedure is performed to
treat portal hypertension, or increased pressure in and backup of
the portal vein. The portal vein is the vein that carries blood
from the digestive organs to the liver.
On July 16, 2001, plaintiff presented to the emergency
room at Barnes Jewish Hospital with complaints related to an
He was noted to be taking Lasix
(Furosemide) and Spironolactone.
He underwent umbilical
Subsequently, plaintiff suffered
complications from stitch abscesses, which were treated surgically.
(Tr. 469-70, 473, 509).
abdominal and hepatic sonography performed on August 21, 2002
revealed cirrhotic changes and minimal ascites.
narrowing at the junction of the previously-placed shunt, with
interval development of mild ascites.
29, 2002, plaintiff underwent TIPS revision.
On March 7, 2003, plaintiff presented to DePaul Health
decreasing mental status and was difficult to rouse.
Plaintiff was noted to be confused, and his history of “end-stage
liver disease for cirrhosis” and treatment was noted, and it was
also noted that plaintiff had been prescribed Lactulose11 but that
he did not take it.
(Tr. 568, 575).
He reported no recent heavy
Lactulose is a synthetic sugar that is used to treat
constipation and also to treat excess amounts of ammonia in the
blood of people with liver disease. It works by drawing ammonia
from the blood into the colon where it can be removed from the
alcohol use or drug use, and stated that his mental symptoms began
It was noted that plaintiff had recently
been diagnosed with diabetes, and was taking insulin and Starlix.12
(Tr. 568). Examination revealed some yellowing of the sclerae, but
no edema of the extremities and no marked distention or ascites.
Laboratory testing revealed an elevated ammonia
Brain CT revealed some increased density in the
left parietal convexity adjacent to the midline, and an MRI of the
brain was recommended.
It was noted that plaintiff was
experiencing difficulty controlling his blood sugar. (Tr. 573-74).
Plaintiff was given Lactulose in large doses to decrease his
Sonography performed on August 26, 2004 revealed stent
stenosis (narrowing), and plaintiff underwent TIPS revision on
September 2, 2004.
(Tr. 525, 523).
On May 8, 2005, plaintiff presented to the emergency room
at DePaul Health Center with complaints of a scalp laceration that
occurred when he was trimming a tree.
explained that a tree branch fell and struck his head.
Plaintiff was alert and in no distress, his abdomen was soft and
non-tender, and examination of his extremities was normal.
Plaintiff received wound care, and was discharged in stable
Visceral sonography performed on July 21, 2005 at Barnes-
Starlix, or Nateglinide, is used to treat diabetes.
Jewish Hospital revealed a functioning TIPS.
sonography performed at Barnes-Jewish Hospital on August 7, 2006
revealed some narrowing of the proximal stent, and follow-up was
performed at Barnes-Jewish Hospital on February 20, 2008 due to
elevated liver enzymes revealed a functioning TIPS, and cirrhosis.
On March 17, 2008, plaintiff was seen by Ingrid D.
Taylor, M.D., of the Washington University School of Medicine
Plaintiff stated that he had been
doing fairly well and that his chronic fatigue had improved. (Id.)
extremities and abdomen, was within normal limits.
Taylor opined that plaintiff’s liver disease seemed “to be fairly
Hospital on March 19, 2008 revealed normal density in the lumbar
spine and hip, and mildly decreased density in the left femoral
On March 16, 2009, plaintiff saw Jeffrey S. Crippin,
M.D., of the Washington University School of Medicine Department of
Internal Medicine, Division of Gastroenterology for consultation
due to alcoholic hepatitis with TIPS.
noted that plaintiff was overall in good health, with the exception
of an angioma over his left eye which was evaluated by the
dermatology department and found to be benign.
On June 8, 2009, Medical Consultant Kevin Threlkheld
completed a Physical Residual Functional Capacity Assessment form.
occasionally lift 20 pounds and frequently lift ten; could stand,
walk, and/or sit for about six hours in an eight-hour workday; and
could push and/or pull without limitation.
opined that plaintiff could perform all postural maneuvers on an
occasional basis, and had no manipulative, visual, or communicative
Mr. Threlkheld opined that plaintiff
hazards, and fumes, odors, dusts, gases, and poor ventilation.
On August 6, 2009, plaintiff returned to Dr. Taylor and
reported a marked decrease in his overall energy level, and stated
that he was unable to work and was requesting disability benefits.
He had no change in his fluid retention, and denied
mental status changes.
Dr. Taylor noted that, while
alcoholic liver disease could lead to a marked decrease in energy
level, testing showed that plaintiff’s hepatic synthetic function
remained normal, and that his portal hypertension remained well
controlled by the TIPS.
Dr. Taylor opined that plaintiff’s
fatigue was “multifactorial” and could have other contributing
factors such as diabetes. (Id.) Dr. Taylor opined that “[c]learly
his symptoms limit his ability to work.”
Also on August 6, 2009, plaintiff saw Dr. Crippin.
Dr. Crippin noted plaintiff’s chief complaint as “I am in
Plaintiff’s history of liver disease and
his TIPS placement in 2001 and revision in 2002 were noted.
Plaintiff complained of fatigue and essential tremor.
stated that he had a history of alcohol abuse, but had been
abstinent since 2000.
Examination revealed spider angiomas
and slight tremor, but no edema or abdominal distention.
On August 19, 2009, visceral sonography revealed coarsened
texture of the liver, and a functioning TIPS.
Evidence Submitted By Plaintiff
plaintiff with his brief in support of his Complaint.
On March 15, 2010, Dr. Crippin wrote that plaintiff was
under his care for alcoholic cirrhosis, that a shunt had been
placed in his liver years ago, and that the fluid in plaintiff’s
abdomen had subsequently been well controlled.
(Docket No. 18,
[plaintiff] has had profound fatigue that will markedly limit his
ability to maintain the obligations of any occupation.
that he be considered for disability.”
Thus, I ask
On April 5, 2010, Dr. Mohrman wrote that he had not seen
evaluation, plaintiff had severe and advanced alcoholic cirrhosis
and was then “markedly disabled” due to refractory ascites which
(Docket No. 18 at page 16).
Dr. Mohrman wrote
that plaintiff told him he had undergone shunt placement with
subsequent revision, and that he was compliant with diuretics in
2000 and 2001.
Dr. Mohrman wrote that plaintiff had been
drinking sporadically, but reported that he stopped completely in
2000 and had been compliant ever since.
Dr. Mohrman wrote
that plaintiff’s condition, prognosis, and degree of disability
would be best assessed by a physician who had been caring for him
during recent years.
On June 21, 2010, Zhiyu Wang, M.D., of the Washington
University School of Medicine Department of Internal Medicine,
Divisions of Endocrine, Metabolism, and Lipid, wrote that plaintiff
was under his care for type 2 diabetes, and had been using
intensive insulin therapy for diabetes control.
Attachment 2, page 1).
(Docket No. 18,
Dr. Wang wrote that plaintiff’s “unstable
blood glucose may limit his ability to maintain the obligations of
Thus, I recommend him be considered for disability.”
(Id. at page 1).
On July 22, 2010, Joanne L. Thanavaro, DNP, APRN-BC,
wrote that plaintiff was under Dr. Crippin’s care for long-standing
alcoholic cirrhosis, and under Dr. Wang’s care for diabetes.
at page 2).
Ms. Thanavaro stated that she agreed with Drs. Crippin
and Wang that plaintiff should be considered for disability. (Id.)
Plaintiff also submitted records from DePaul Hospital and
Sriram Vissa, M.D., documenting a hospital admission on August 20,
(Docket No. 18, Attachment 1, pages 1-6).
brought to the hospital by family members who noted that he had an
difficulty smoking, and difficulty eating. (Id. at pages 2-3).
was noted that plaintiff’s diabetes was uncontrolled, and that he
had hepatic encephalopathy (a worsening of brain function due to
the liver’s inability to remove toxins from the blood) and a left
occipital arteriovenous malformation (also “AVM,” a tangle of
arteries and veins).
Plaintiff underwent embolization of
(Id. at pages 2-3).
Professor of Neurology at Saint Louis University, noted plaintiff’s
evaluation at DePaul Hospital for an unruptured arteriovenous
malformation, and noted
that he had had undergone successful
(Id. at page 8).
Dr. Vora wrote that the lesion
represented advanced hepatic disease, as these lesions were seen in
severe cirrhosis, and that plaintiff’s advanced liver disease
rendered him incapable of regular work.
Dr. Vora wrote that
plaintiff “would be a candidate for disability assistance.”
On March 21, 2011, Dr. Crippin wrote that plaintiff had
been under his care for alcoholic liver disease for approximately
ten years, and that TIPS placement had lead to reasonable control
of his fluid retention.
(Docket No. 18, Attachment 1, page 7).
Dr. Crippin wrote that plaintiff had had intermittent episodes of
hepatic encephalopathy that required hospitalization, and profound
fatigue that made it impossible for him to perform the obligations
of his profession.
On June 9, 2011, Dr. Jotte wrote that plaintiff had been
seen in the office on June 6, 2011, and that this was the first
visit since December 15, 2000.
(Docket No. 18 at page 11).
Jotte wrote that plaintiff reported that he had not been consuming
alcohol during the years 1998-2000.
Plaintiff also submitted records from Drs. Jotte and Gale
dated in February and May of 1998, and Dr. Mohrman’s December 5,
administrative transcript, and are summarized above.
also submitted nine pages of pharmacy records dated December 4,
2000 through September 12, 2003.
(Docket No. 18, Attachment 3).
Plaintiff also submitted four pages of AA meeting attendance slips
documenting plaintiff’s attendance at AA meetings in 2002 through
(Docket No. 18, Attachment 4).
The ALJ’s Decision
The ALJ determined that plaintiff last met the insured
status requirements of the Social Security Act on June 30, 2000.
The ALJ determined that plaintiff did not engage in
substantial gainful activity during the period beginning on his
alleged onset date through his last date insured.
impairments of cirrhosis of the liver, and alcoholism.
ALJ analyzed the evidence of record and concluded that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled a listed impairment.
The ALJ determined that plaintiff retained the residual
functional capacity (also “RFC”) to perform the full range of light
work, and also determined that plaintiff was unable to perform his
past relevant work.
Using the Medical-Vocational
Guidelines, the ALJ concluded that plaintiff was not under a
disability, as such is defined by the Act, at any time from
plaintiff’s alleged onset date through June 30, 2000, his last date
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
To be eligible for disability benefits under Title II, a
claimant must demonstrate that his condition was disabling prior to
the expiration of his insured status.
20 C.F.R. § 404.130; see
also Davidson v. Astrue, 501 F.3d 987, 989 (8th Cir. 2007), Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Therefore, as the
relevant time period in this case is plaintiff’s alleged onset
date, May 1, 1998, through his last date insured, June 20, 2000.
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).
“Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.”
quotation marks and citations omitted).
The Court must also
consider any evidence which fairly detracts from the Commissioner’s
Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d
1047, 1050 (8th Cir. 1999).
“[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); 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 alleges that the ALJ improperly
considered that plaintiff failed to take his medications and failed
to stop drinking in assessing his credibility.
argues that the ALJ improperly focused upon the diagnosis of
ascites when in fact cirrhosis was the main issue, and states that
he could never work for longer than three and ½ hours.
takes issue with several statements in Dr. Mohrman’s December 5,
2000 report, and also argues that the letters and the new evidence
he submitted support his application for benefits.
the Commissioner contends that the ALJ’s decision is supported by
substantial evidence on the record as a whole.
medically determinable impairments could be expected to cause some
of the alleged symptoms, but that his statements concerning the
intensity, persistence and limiting effects were not entirely
credible. Plaintiff challenges this determination, arguing that it
was error for the ALJ to consider that he continued to drink
compliant with medication.
Review of the record reveals no error.
Before determining the claimant’s residual functional
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
allegations in accordance with 20 C.F.R. §§ 404.1529 and Social
Security Rulings 96-4p and 96-7p, which correspond with the Polaski
decision and credibility determination.
The ALJ then analyzed the
evidence of record and explicitly noted inconsistencies in the
record detracting from plaintiff’s credibility.
The ALJ noted that plaintiff’s credibility was diminished
by evidence in the record demonstrating that he continued to drink
alcohol despite the impact on his liver disease and despite being
told by his doctors to stop completely.
by the record.
This finding is supported
According to the medical evidence of record,
plaintiff continued to consume alcohol even though he had been told
to abstain as early as April of 1997.
On May 15, 1998, plaintiff
reported drinking ½ to one pint of alcohol per day.
During a March
1999 office visit, Dr. Jotte noted that plaintiff smelled of
On June 8, 2000, plaintiff told Dr. Jotte that he
consumed four beers per day.
In addition, while plaintiff
qualified that testimony with the statement “I mean I’m not saying
now and then I didn’t have a beer or what not . . .”.
An ALJ may properly consider a claimant’s refusal to comply
with medical advice as a factor detracting from his credibility.
See Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008) (citing
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005)).
physicians regarding his alcohol consumption.
testified that he stopped drinking in February of 2000 but may have
documents that he repeatedly reported drinking four beers per day.
See Thompson v. Astrue, 226 Fed.Appx. 617, 619-620 (8th Cir. 2007)
(discrepancies between a claimant’s hearing testimony and his
reports to his physicians was one factor supporting the ALJ’s
adverse credibility determination).
The ALJ also considered the observations of plaintiff’s
treatment providers that plaintiff had a history of non-compliance
Although plaintiff alleges error, the medical
evidence of record supports the ALJ’s consideration of medication
non-compliance as part of his credibility determination. Plaintiff
does not allege that, during the relevant time period, diuretics
caused intolerable side effects or that he could not afford them.
While plaintiff states that he had a good reason to stop taking
prescribed Furosemide and Spironolactone to control plaintiff’s
symptoms of weight gain, fluid retention, and edema on June 8,
However, in November of 2000, both Drs. Jotte and Mohrman
noted that plaintiff repeatedly stopped taking the medication.
While those observations were included in records dated after the
expiration of plaintiff’s insured status, the medication plaintiff
was refusing to take was prescribed before the expiration of his
insured status, and Dr. Jotte noted that plaintiff had been off the
medication for “quite some time.” (Tr. 155).
considering evidence of plaintiff’s documented history of noncompliance with medication as one factor detracting from the
credibility of his subjective allegations of symptoms precluding
See Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.
2001) (an ALJ may consider non-compliance with medical treatment in
discrediting subjective complaints).
treatment for the symptoms he now alleges rendered him totally
Commissioner’s statement that plaintiff did not seek treatment
until June of 2000 is “wrong.”
(Docket No. 26 at page 1).
However, while plaintiff may have sought medical treatment between
May of 1998 and June of 2000, that treatment was for complaints of
upper respiratory symptoms and bronchitis, not ascites or edema or
other manifestations of his liver condition.
The medical evidence
documents that plaintiff sought treatment for ascites and edema in
May of 1998, and that his symptoms resolved.
Plaintiff did not
seek treatment for those symptoms again until June 8, 2000, at
which time he complained of weight gain and fluid retention and was
prescribed diuretics, and did not seek treatment again until
November 15, 2000.
At that time, it was noted that his symptoms
had returned over the past month (which would be October of 2000,
after the expiration of his insured status) and that he had stopped
taking his medication.
Plaintiff’s lack of regular and sustained
treatment during the relevant time period for the symptoms he
alleges rendered him totally disabled is a basis for discounting
his complaints, and is an indication that his impairments were nonsevere and not significantly limiting for twelve continuous months.
Novotny v. Chater, 72 F.3d 669, 671 (8th Cir. 1995).
Also notable is the fact that, when plaintiff did seek
treatment during the relevant time period for the symptoms he now
alleges rendered him totally disabled, he did not describe to his
doctors the severe functional limitations he described during the
administrative hearing, nor did any of his doctors advise him to
limit his activities as severely as he alleges he needed to.
Finally, while receiving medical treatment between May 1998 and
June 2000, plaintiff did not complain about the symptoms he now
alleges rendered him totally disabled. See Stephens v. Shalala, 46
F.3d 37, 38 (8th Cir. 1995) (per curiam) (discrediting later
allegations of back pain when no complaints made about such pain
while receiving other treatment).
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 record before
him, and gave good reasons for finding plaintiff’s allegations not
An ALJ may disbelieve subjective complaints where
there are inconsistencies on the record as a whole.
Sullivan, 902 F.2d 657, 660 (8th Cir. 1990).
Because the ALJ
discredited plaintiff’s subjective complaints for a good reason,
that decision should be upheld.
Hogan, 239 F.3d at 962.
The ALJ in this case determined that, during the relevant
time period, plaintiff retained the RFC to perform the full range
of light work.
Plaintiff argues that the ALJ improperly focused
upon ascites when in fact cirrhosis was the main issue.
also argues that he was unable to do more than three and ½ hours of
work, and that his condition would have caused him to miss too much
Review of the ALJ’s decision reveals no error.
Residual functional capacity is defined as that which a
person remains able to do despite his limitations.
20 C.F.R. §§
404.1545(a), 416.945(a); Lauer v. Apfel, 245 F.3d 700, 703 (8th
The ALJ must assess a claimant’s RFC based upon all
records, the observations of treating physicians and others, and
the claimant’s own description of his symptoms and limitations. 20
C.F.R. §§ 404.1545(a), 416.945(a); Anderson v. Shalala, 51 F.3d
777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th
A claimant’s RFC is a medical question, and there must be
some medical evidence, along with other relevant, credible evidence
in the record, to support the ALJ’s RFC determination.
Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer, 245 F.3d at
703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
However, although an ALJ must determine the claimant’s RFC based
upon all relevant evidence, the ALJ is not required to produce
evidence and affirmatively prove that a claimant can lift a certain
weight or walk a certain distance, Pearsall, 274 F.3d at 1217 (8th
Cir. 2001); McKinney, 228 F.3d at 863, nor is the ALJ required to
mechanically list and reject every possible limitation.
Astrue, 648 F.3d 605, 615 (8th Cir. 2011). The claimant bears the
burden of establishing his RFC.
Goff, 421 F.3d at 790.
In this case, after considering all of the evidence of
record probative of plaintiff’s condition before the expiration of
his insured status, the ALJ determined that plaintiff’s impairments
plaintiff’s contention that could not work for longer than three
and ½ hours, the ALJ’s conclusion is supported by the record which
documents that plaintiff sought treatment for ascites and edema in
May of 1998, that his symptoms resolved, and that he did not seek
treatment for those symptoms again until June 8, 2000, at which
time he was prescribed diuretics. Plaintiff did not seek treatment
again until November 15, 2000, at which time he stated that his
symptoms had returned over the last month, which would mean October
of 2000, after the expiration of his insured status.
relevant time period, plaintiff reported feeling great and did not
describe any functional limitations to his doctors at all, much
less functional limitations of the severe nature he describes here.
Plaintiff’s treatment records fail to demonstrate that plaintiff’s
symptoms were intractable or uncontrollable or caused significant
functional limitations before the expiration of his insured status.
Conditions which are controllable or amenable to treatment cannot
be considered disabling.
Kisling v. Chater, 105 F.3d 1255, 1257
(8th Cir. 1997).
Plaintiff contends that the ALJ improperly focused upon
ascites when cirrhosis was the main problem.
correctly asserts that he was diagnosed with cirrhosis during the
relevant time period, it was proper for the ALJ to focus upon
ascites because ascites was the symptom that was documented in the
medical evidence pertaining to the relevant time period.
Commissioner correctly notes, the mere presence of an impairment
demonstration of functional loss that establishes the inability to
engage in substantial gainful activity.
See Trenary v. Bowen, 898
F.2d 1361, 1364 (8th Cir. 1990) (the mere presence of a mental
disturbance is not disabling per se, absent a showing of severe
functional loss establishing an inability to engage in substantial
Plaintiff also appears to assert that the ALJ should have
assessed limitations resulting from an umbilical hernia.
the relevant medical evidence fails to demonstrate that plaintiff
umbilical hernia during the relevant time period. Without evidence
of severe functional loss establishing the inability to engage in
substantial gainful activity, plaintiff’s umbilical hernia was not
See Trenary, 898 F.2d at 1364; see also Higgs v. Bowen,
880 F.2d 860 (8th Cir. 1988) (A mere diagnosis says nothing about
the severity of a condition). The evidence simply fails to support
the conclusion that plaintiff had the necessary functional loss to
support the finding that he was totally disabled and unable to
perform any work before the expiration of his insured status.
Instead, the medical evidence pertaining to the relevant time
period documents that plaintiff’s symptoms were transient and
To be eligible for disability benefits under Title
II, a claimant must demonstrate that his condition was disabling
prior to the expiration of his insured status.
20 C.F.R. §
404.130; see also Davidson, 501 F.3d at 989, Cox, 471 F.3d at 907.
As discussed above, the ALJ in this case conducted a
inconsistent with the record as a whole plaintiff’s subjective
allegations of symptoms precluding all work.
See McGeorge v.
Barnhart, 321 F.3d 766, 769 (8th Cir. 2003) (the ALJ “properly
limitations he found credible based on his evaluation of the entire
The ALJ also limited plaintiff to light work, which
represents significant functional limitations.
See Choate v.
Barnhart, 457 F.3d 865, 870 (8th Cir. 2006) (citing Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005)).
submitted with his brief, summarized above in Section II(B)(3),
supports his application and forms a basis for remand.
405(g) generally precludes the consideration of evidence that was
not part of the administrative record before the Commissioner
during the administrative proceedings. Jones v. Callahan, 122 F.3d
1148, 1154 (8th Cir. 1997) (citing Delrosa v. Sullivan, 922 F.2d
480, 483 (8th Cir. 1991)).
Remand is appropriate only when the
claimant demonstrates “that there is new evidence which is material
and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.”
Jones, 122 F.3d
at 1154 (citing 42 U.S.C. § 405(g), Thomas v. Sullivan, 928 F.2d
255, 260 (8th Cir. 1991)).
Evidence is considered to be material when it relates to
the claimant’s condition for the time period for which benefits
were denied, and not to “after-acquired conditions or post-decision
deterioration of a pre-existing condition.” Bergmann v. Apfel, 207
F.3d 1065, 1069-70 (8th Cir. 2000); see also Jones, 122 F.3d at
1154 (citing Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993)
cumulative, relevant, and probative of the claimant’s condition for
the time period for which benefits were denied.”).
It must also be
reasonably likely that the Commissioner’s consideration of this new
evidence would have resulted in an award of benefits.
F.3d at 1154.
As noted in the above summary of the medical information
of record, the treatment records of Drs. Jotte and Mohrman were in
fact part of the original administrative record and, as discussed
Plaintiff also submitted a letter from Dr. Jotte in which
Dr. Jotte wrote that plaintiff presented to him on June 6, 2011
after a nearly eleven year absence and reported that he had not
been consuming alcohol during the years 1998-2000.
statement to Dr. Jotte is belied by the record.
On May 15, 1998,
plaintiff told Dr. Jick that he drank ½ to one pint of alcohol per
On December 21, 1999, Dr. Jotte noted that plaintiff smelled
On June 8, 2000 plaintiff told Dr. Jotte that he had
reduced his alcohol consumption to four beers per day. On November
15, 2000, plaintiff told Dr. Jotte that he had cut back to four
presenting for the office visit.
On December 20, 2000, plaintiff
told Dr. Mohrman that he had not been entirely compliant with
medical advice to avoid alcohol.
As the Commissioner correctly
notes, Dr. Jotte’s letter provides no basis for remand because it
is unlikely to change the Commissioner’s decision.
See Jones, 122
F.3d at 1154 (it must be reasonably likely that the Commissioner’s
consideration of the new evidence would have resulted in an award
Plaintiff also submitted a copy of Dr. Mohrman’s December
5, 2000 report containing plaintiff’s own handwritten annotations
challenging various aspects of that report.
Next to Dr. Mohrman’s
November of 2000, plaintiff writes “Did Quit!”
(Docket No. 18 at
Next to Dr. Mohrman’s observation that there were times
that plaintiff stopped drinking, plaintiff wrote “‘98-99 Quit
These challenges have no merit in light
of the numerous observations, summarized above, from Dr. Mohrman
and other treatment providers that plaintiff continued to consume
alcohol up to and including December of 2000.
Next to Dr.
Mohrman’s notation that plaintiff stopped taking Furosemide and
Spironolactone after only a couple of days, plaintiff wrote “Took
Plaintiff’s challenge has no merit, as the administrative record
documents plaintiff’s non-compliance with medication.
plaintiff writes that he stopped taking the medications because
they were doing no good, medical records pertaining to plaintiff’s
condition after the expiration of his insured status document that
plaintiff was taking Furosemide and Spironolactone. Plaintiff also
writes that the ALJ did not read Dr. Mohrman’s report.
the ALJ specifically noted this report in his decision.
For the remainder of his challenges, plaintiff wrote that Dr.
Jotte failed to send records upon request and was not informative.
plaintiff had little insight into his liver disease and that his
prognosis was grim.
None of these challenges are meritorious or
The remainder of the evidence plaintiff submitted is new
in the sense that it was not in existence during the administrative
proceedings, but it is not material because it is not probative of
plaintiff’s condition before the expiration of his insured status.
As summarized above, several medical treatment providers submitted
letters dated in 2010 and 2011 stating that plaintiff should be
considered for disability. In support, the providers described the
efficacy of the TIPS, and plaintiff’s diagnoses of diabetes,
hepatic encephalopathy, and brain AVM.
However, none of these
expiration of his insured status.
See Davidson, 501 F.3d at 989
(“Davidson’s insured status expired on December 31, 2003, so, like
the Commissioner, we consider her condition before that date.”).
condition after the expiration of his insured status, and also
document that plaintiff was subsequently diagnosed with diabetes.
New evidence can only be considered material if it relates to the
claimant’s condition for the time period for which benefits were
deterioration of a pre-existing condition.”
Bergmann, 207 F.3d at
In their letters, the providers also wrote that plaintiff
should be considered for disability and that he would be unable to
Medical provider statements that a claimant is
disabled or unable to work are not entitled to deference because a
“medical source opinion that an applicant is ‘disabled’ or ‘unable
to work’ ... involves an issue reserved for the Commissioner and
therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.” Ellis, 392 F.3d at 994
(citing Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004)).
substantial evidence on the record as a whole, and should therefore
Because there is substantial evidence to support the
decision, reversal is not required merely because substantial
evidence may support a different outcome, or because another court
could have decided the case differently.
Gowell v. Apfel, 242 F.3d
793, 796 (8th Cir. 2001).
Commissioner is affirmed, and plaintiff’s Complaint is dismissed
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 12th day of October, 2012.
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