Fox v. Astrue
Filing
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MEMORANDUM OPINION...Substantial evidence in the record as a whole supports the decision of the ALJ finding plaintiff not disabled because the evidence of record does not support the presence of a severe impairment or combination of impairments. Accordingly, Judgment will be entered separately in favor of defendant in accordance with this Memorandum.. Signed by Magistrate Judge Lewis M. Blanton on 9/6/12. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIWANA FOX,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 4:11CV00946 LMB
MEMORANDUM
This is an action under 42 U.S.C. § 405(g) for judicial review of defendant’s final decision
denying the application of Tiwana Fox for Supplemental Security Income under Title XVI of the
Social Security Act. This case has been assigned to the undersigned United States Magistrate
Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See
28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint.
(Doc. No. 20). Defendant filed a Brief in Support of the Answer. (Doc. No. 21).
Procedural History
On October 31, 2008, plaintiff filed her application for benefits, claiming that she became
unable to work due to her disabling condition on October 17, 2008. (Tr. 14). This claim was
denied initially, and following an administrative hearing, plaintiff’s claim was denied in a written
opinion by an Administrative Law Judge (ALJ), dated July 13, 2010. (Tr. 41-45, 14-21). Plaintiff
then filed a request for review of the ALJ’s decision with the Appeals Council of the Social
Security Administration (SSA), which was denied on April 19, 2011. (Tr. 1-6). Thus, the
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decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981,
416.1481.
Evidence Before the ALJ
A.
ALJ Hearing
Plaintiff’s administrative hearing was held on May 14, 2010. (Tr. 27). Plaintiff was
present and was represented by counsel. (Id.). Also present was vocational expert Thomas
Dunlevy. (Id.).
Plaintiff’s attorney made an opening statement, in which he indicated that plaintiff suffered
from uncontrolled diabetes and arthritis in her knees and hands. (Tr. 28). Plaintiff’s attorney
stated that plaintiff experienced fatigue, excessive thirst, and excessive urination as a result of the
diabetes. (Id.). Plaintiff’s attorney stated that plaintiff experienced significant knee pain as a
result of the arthritis. (Id.).
The ALJ examined plaintiff, who testified that she completed eleventh grade. (Tr. 29).
Plaintiff stated that she was unable to work due to the arthritis in her knees, high blood pressure,
and diabetes. (Id.).
Plaintiff testified that she moved in with her niece because plaintiff was sick. (Id.).
Plaintiff stated that she did not perform any housework during the day due to her knee pain and
the arthritis in her hands. (Tr. 30). Plaintiff stated that she had difficulty gripping due to the
arthritis in her hands. (Id.). Plaintiff testified that her twenty-seven-year-old niece did all of the
housework. (Id.). Plaintiff stated that her niece had a six-year-old son who lived with them.
(Id.).
Plaintiff testified that she received medical treatment at Barnes Hospital and Grace Hill.
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(Id.). Plaintiff stated that Dr. Janet Judal at Grace Hill was treating her for her hand problems.
(Id.). Plaintiff testified that she last saw Dr. Judal on May 12, 2010. (Id.). Plaintiff stated that
she went to Grace Hill every month for a checkup regarding her diabetes and blood pressure.
(Id.). Plaintiff testified that she had degenerative joint disease1 in her right hand. (Tr. 31).
Plaintiff stated that she helped her nephew with his homework. (Id.). Plaintiff testified
that she had a driver’s license but did not own a car. (Id.). Plaintiff stated that she went for
walks. (Tr. 32). Plaintiff testified that she also walked to the store, which was located one block
away from her home, to buy groceries. (Id.). Plaintiff stated that she experienced shortness of
breath after walking to the store. (Id.).
Plaintiff’s attorney then examined plaintiff, who testified that she slept during the day
because she was unable to sleep at night due to pain in her legs. (Id.). Plaintiff stated that she
went to sleep after taking her insulin at around 9:00 a.m., and slept until about 5:00 p.m. (Id.).
Plaintiff testified that she had neuropathy2 in her legs in addition to the arthritis. (Tr. 33).
Plaintiff stated that elevating her legs eased the discomfort of the neuropathy. (Id.).
Plaintiff testified that she used the bathroom frequently due to her diabetes. (Id.). Plaintiff
stated that her average blood sugar reading for the prior month was 337. (Id.). Plaintiff testified
that her doctor was concerned about this number and increased her insulin. (Id.).
The ALJ examined the vocational expert, Mr. Dunlevy. The ALJ asked Mr. Dunlevy to
1
Degenerative joint disease, or osteoarthritis, is characterized by erosion of articular
cartilage, either primary or secondary to trauma or other conditions, which becomes soft, frayed,
and thinned with eburnation of subchondral bone and outgrowths of marginal osteophytes; pain
and loss of function result. Stedman’s Medical Dictionary, 1388 (28th Ed. 2006).
2
A classic term for any disorder affecting any segment of the nervous system. Stedman’s
at 1313.
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assume a hypothetical claimant with plaintiff’s characteristics and the following limitations:
occasionally lift up to twenty pounds; frequently lift ten pounds or less; occasionally climb stairs
or ramps; no climbing of ladders, ropes, or scaffolds; occasionally balance, stoop, and kneel; and
no crouching or crawling. (Tr. 35). Mr. Dunlevy testified that the hypothetical claimant would
be capable of performing plaintiff’s past work as a cashier, as actually performed and as in the
DOT; and plaintiff’s position as an assembly machine tender as generally performed, but not as
actually performed. (Id.). Mr. Dunlevy testified that the individual would also be capable of
performing other light work, such as that of assembler (10,000 such positions in Missouri);
laundry folder (2,000 such positions); and cafeteria attendant (3,000 such positions). (Tr. 36).
The ALJ next asked Mr. Dunlevy to assume a hypothetical claimant who is limited to the
full range of sedentary work. (Id.). Mr. Dunlevy testified that the individual could perform work
as an assembler (4,000 such positions); visual inspector (2,000 such positions); and sorter (3,000
such positions). (Tr. 37).
The ALJ then asked Mr. Dunlevy to assume a hypothetical claimant who is limited to
working four hours out of an eight-hour day, with a need to take frequent breaks due to fatigue or
for bathroom breaks, and who would be absent more than two times per month. (Id.). Mr.
Dunlevy testified that such an individual would not be competitively employable. (Id.). Mr.
Dunlevy stated that absenteeism should not exceed ten days annually, or one day monthly for
three consecutive months. (Id.).
B.
Relevant Medical Records
The record reveals that plaintiff received treatment at Grace Hill Neighborhood Health
Centers (“Grace Hill”) from March 2006 through the date of the hearing for various complaints,
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including abdominal pain, allergic reactions, and blood sugar issues. (Tr. 191-97). On December
13, 2006, plaintiff complained of decreased appetite, poor sleep, crying spells, and anhedonia.
(Tr. 198). Ankle edema was noted on examination. (Tr. 200). Plaintiff was diagnosed with
diabetes mellitus,3 hypertension, increased lipids, and depression. (Tr. 201). Plaintiff was
prescribed medication for her diabetes and hypertension, and was prescribed Lexapro4 for her
depression. (Id.). On January 10, 2007, plaintiff reported that the Lexapro “helped a whole lot,”
with her sleep and mood. (Tr. 202). Plaintiff’s physical examination revealed ankle edema. (Tr.
203). On April 9, 2007, plaintiff complained of right elbow pain. (Tr. 206). Ankle edema was
again noted on examination. (Tr. 207). Plaintiff was prescribed Naproxen.5 (Tr. 208). On April
23, 2007, plaintiff reported that the Naproxen relieved her right elbow pain but made her sleepy.
(Tr. 209). On May 21, 2007, plaintiff followed up regarding her blood sugar levels, ankle edema,
and an allergic reaction to hair dye. (Tr. 210). Plaintiff presented for follow-up on June 4, 2007,
at which time self-management for smoking, obesity, and diabetes were discussed. (Tr. 216).
Plaintiff received treatment on June 18, 2007 for ankle edema, hypertension, and diabetes. (Tr.
219). Plaintiff returned for follow-up on September 25, 2007, April 18, 2008, and May 1, 2008.
3
A chronic metabolic disorder in which the use of carbohydrate is impaired and that of
lipid and protein is enhanced. It is caused by an absolute or relative deficiency of insulin and is
characterized, in more severe cases, by chronic hyperglycemia, glycosuria, water and electrolyte
loss, ketoacidosis, and coma. Long-term complications include neuropathy, nephropathy,
generalized degenerative changes in large and small blood vessels, and increased susceptibility to
infection. Stedman’s at 529.
4
Lexapro is an antidepressant indicated for the treatment of major depressive disorder.
Physician’s Desk Reference, (“PDR”), 1175 (63rd Ed. 2009).
5
Naproxen is a nonsteroidal anti-inflammatory drug indicated for the treatment of
osteoarthritis. See PDR at 2632-33.
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(Tr. 222-31). Plaintiff’s physicians continued to adjust her medications. (Id.). On July 9, 2008, it
was noted that plaintiff was not checking her blood sugar levels, and that plaintiff’s diet was
“poor.” (Tr. 232-33). Plaintiff was diagnosed with poorly controlled diabetes. (Tr. 235).
Plaintiff was prescribed medication and was instructed to stop consuming sugared drinks. (Id.).
On July 23, 2008, it was noted that plaintiff had stopped consuming sugared drinks, was taking
her medication as directed, and felt fine. (Tr. 236). Plaintiff was instructed to continue dieting.
(Tr. 238).
On October 9, 2008, plaintiff complained of severe pain in her right knee, which limited
her activities. (Tr. 259). Upon examination of the right knee, no erythema or edema was noted;
plaintiff’s right knee was tender to palpation; and plaintiff had limited range of motion of the right
knee due to pain. (Tr. 261). A knee x-ray was ordered. (Tr. 262).
Plaintiff underwent x-rays of her right knee on October 10, 2008, which revealed minimal
degenerative joint disease. (Tr. 240).
Plaintiff presented to Grace Hill for follow-up on November 12, 2008, at which time
plaintiff reported that her knee pain was a ten on a scale of one to ten. (Tr. 263). Plaintiff
indicated that her pain was relieved by heat. (Id.). Upon examination, plaintiff’s knee was tender
with palpation and pain was noted with palpation and flexion. (Tr. 264). Plaintiff was prescribed
Tramadol6 and quad strengthening exercises. (Tr. 265).
Plaintiff presented for follow-up regarding her diabetes, hypertension, and knee pain on
February 4, 2009. (Tr. 271). It was noted that plaintiff’s knee pain was controlled with
6
Tramadol is a centrally acting synthetic analgesic indicated for the management of
moderate to moderately severe chronic pain in adults who require around-the-clock treatment of
their pain for an extended period of time. See PDR at 2429.
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medication, and that plaintiff was tolerating an increase in her insulin. (Id.). It was found that
plaintiff had reached her goal with regard to her hypertension. (Tr. 271). Plaintiff’s diet and
exercise were described as better. (Tr. 269). Plaintiff’s medications were adjusted. (Tr. 271).
Records from St. Charles County Department of Corrections dated November 4, 2009,
indicated that plaintiff’s speech was pushed and her thought process was circumstantial. (Tr.
302). Counseling was recommended. (Id.). Plaintiff received mental health treatment on five
additional occasions from November 2009 through March 2010. (Tr. 297-302).
Plaintiff also received treatment for her diabetes through the Department of Corrections
from October 2009 through March 2010, including monitoring of her blood sugar levels on
approximately a daily basis. (Tr. 292-352). Plaintiff was given medication, including insulin, for
her diabetes. (Id.). Records also indicate that plaintiff refused medical care, including medication
and snacks for management of her diabetes, on approximately fourteen occasions. (Tr. 275-94).
It was noted that a skin test was positive for tuberculosis,7 yet a chest x-ray was negative for
tuberculosis. (Tr. 372). In a note dated December 4, 2009, a physician stated that plaintiff was
receiving treatment for insulin-dependent diabetes and hypertension, and that her condition was
satisfactory. (Tr. 321).
Plaintiff presented to the emergency room at Barnes-Jewish Hospital on April 18, 2010,
with complaints of weakness in her right arm. (Tr. 367). Plaintiff underwent x-rays of the right
arm and shoulder, which did not reveal any fractures. (Id.). Plaintiff was diagnosed with arthritis.
(Id.).
7
A specific disease caused by an infection which can affect almost any tissue or organ of
the body, the most common site of the disease being the lungs. See Stedman’s at 2046.
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Plaintiff presented to Grace Hill on August 23, 2010, for evaluation of osteoarthritis in her
knees and “pain disproportionate to x-ray findings.” (Tr. 373). Plaintiff was referred to an
orthopedist. (Id.).
C.
Records Submitted to the Appeals Council
Plaintiff presented to Barnes-Jewish Hospital on November 29, 2010, with complaints of
low back pain. (Tr. 386). It was noted that plaintiff had a history of diabetes mellitus, arthritis of
the knees, hypertension, and stroke. (Tr. 391). Upon examination, plaintiff was able to move all
of her extremities well, and no edema was present. (Tr. 387). Plaintiff underwent x-rays of the
thoracic8 and lumbar spine, which were negative for fracture or dislocation, but revealed some
mild degenerative disc disease.9 (Tr. 393, 398). Plaintiff was given pain medication, which
controlled her pain. (Id.). Plaintiff was diagnosed with lumbar degenerative disc disease. (Tr.
403). Plaintiff was prescribed Naproxen and Hydrocodone,10 and was discharged. (Tr. 394).
Plaintiff returned to Barnes-Jewish Hospital on December 9, 2010, with complaints of
back pain. (Tr. 424). Plaintiff left before being seen by a physician. (Tr. 427).
8
In common terms, the cervical region of the spinal column is the neck; the thoracic region
is the main part of the back; and the lumbar region is the lower back. There are seven cervical
vertebrae, twelve thoracic vertebrae, and five lumbar vertebrae. The sacrum lies directly below
the fifth lumbar vertebra. The coccyx, or tail bone, lies below the sacrum. See J. Stanley
McQuade, Medical Information Systems for Lawyers, § 6:27 (1993).
9
A general term for both acute and chronic processes destroying the normal structure and
function of the intervertebral discs. See Medical Information Systems for Lawyers, § 6:201.
10
Hydrocodone is indicated for the relief of moderate to moderately severe pain. See PDR
at 3145.
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The ALJ’s Determination
The ALJ made the following findings:
1.
The claimant has not engaged in substantial gainful activity since October 21,
2008, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following medically determinable impairments: diabetes
mellitus, hypertension, degenerative joint disease of the right knee, tuberculosis
positive, and obesity (20 CFR 416.921 et seq.).
3.
The claimant does not have an impairment or combination of impairments that has
significantly limited (or is expected to significantly limit) the ability to perform
basic work-related activities for 12 consecutive months; therefore, the claimant
does not have a severe impairment or combination of impairment (20 CFR 416.921
et seq.).
4.
The claimant has not been under a disability, as defined in the Social Security Act,
since October 21, 2008, the date the application was filed (20 CFR 416.920(c)).
(Tr. 16-20).
The ALJ’s final decision reads as follows:
Based on the application for supplemental security income filed on October 21, 2008, the
claimant is not disabled under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 21).
Discussion
A.
Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to
the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
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inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996). “[T]he court must also take into consideration the weight of the evidence
in the record and apply a balancing test to evidence which is contrary.” Burress v. Apfel, 141
F.3d 875, 878 (8th Cir. 1998). The analysis required has been described as a “searching inquiry.”
Id.
B.
The Determination of Disability
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 has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 416 (I) (1) (a); 42 U.S.C. § 423 (d) (1) (a). The claimant
has the burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d
598, 601 (8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 14142, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895
(8th Cir. 1998). First, it is determined whether the claimant is currently engaged in “substantial
gainful employment.” If the claimant is, disability benefits must be denied.
See 20 C.F.R. §§ 404.1520, 416.920 (b). Step two requires a determination of whether the
claimant suffers from a medically severe impairment or combination of impairments.
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See 20 C.F.R §§ 404.1520 (c), 416.920 (c). To qualify as severe, the impairment must
significantly limit the claimant’s mental or physical ability to do “basic work activities.” Id. Age,
education and work experience of a claimant are not considered in making the “severity”
determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. §§ 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
20 C.F.R. §§ 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the
next step which inquires into whether the impairment prevents the claimant from performing his
or her past work. See 20 C.F.R. § 404.1520 (e), 416.920 (e). If the claimant is able to perform
the previous work, in consideration of the claimant’s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant’s residual functional capacity, age, education and work experience.
See 20 C.F.R. §§ 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if
s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant’s ability to perform
other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
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C.
Plaintiff’s Claims
Plaintiff argues that the ALJ erred in finding that plaintiff did not have a severe
impairment. Specifically, plaintiff contends that the ALJ erred in evaluating the medical opinion
evidence, assessing plaintiff’s credibility, failing to properly consider plaintiff’s obesity, and failing
to develop the record. Plaintiff also argues that the Commissioner erred in failing to consider new
and material evidence presented to the Appeals Council. Defendant contends that the ALJ
properly found that plaintiff’s impairments were not severe.
The ALJ found at step two of the sequential evaluation that plaintiff’s medically
determinable impairments of diabetes mellitus, hypertension, degenerative joint disease of the
right knee, tuberculosis positive, and obesity were not severe. (Tr. 16). Step two of the
sequential evaluation process requires a determination of whether the claimant suffers from a
medically severe impairment or combination of impairments. See 20 C.F.R §§ 404.1520 (c),
416.920 (c). To qualify as severe, the impairment must significantly limit the claimant’s mental or
physical ability to do “basic work activities.” Id. While the burden is not great, the claimant bears
the burden at step two to demonstrate a severe impairment that significantly limits the ability to
perform basic work activities. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000);
Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). Severity is not a “toothless standard,”
and the Eighth Circuit has upheld on numerous occasions the Commissioner’s finding that a
claimant failed to make this showing. Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007). See,
e.g. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons v. Massanari, 264 F.3d 751,
755 (8th Cir. 2001); Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); Nguyen v.
Chater, 75 F.3d 429, 431 (8th Cir. 1996). The sequential evaluation process may be terminated at
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step two when the claimant’s impairment or combination thereof would have no more than a
minimal effect on the claimant’s ability to work. See Simmons, 264 F.3d at 755.
In the instant case, plaintiff contends that the ALJ improperly evaluated the medical
evidence in finding that plaintiff’s impairments were not severe. Despite plaintiff’s claims, the
ALJ found that the medical evidence of record did not corroborate plaintiff’s allegation of severe
diabetes mellitus, hypertension, degenerative joint disease of the right knee, tuberculosis positive,
obesity, and history of right upper extremity pain. (Tr. 19). The ALJ noted that the medical
evidence of record “documents minimally positive clinical findings that reflect no more than a
minimal impact upon the claimant’s ability to perform basic work activities, even when her
impairments are considered in combination or singly.” (Id.). The ALJ’s determination is
supported by the record.
Plaintiff underwent x-rays of her right knee on October 10, 2008, which revealed only
“minimal” degenerative joint disease. (Tr. 240). The ALJ noted that the only abnormal findings
noted on examination were edema, tenderness, and limited range of motion of the right knee. (Tr.
19). No other abnormalities were noted, such as erythema, decreased strength, diminished
reflexes, or diminished motor function. (Id.). The ALJ noted that plaintiff’s knee impairment was
treated conservatively with medication and recommended exercises. (Id.). On November 12,
2008, plaintiff reported that her knee pain was relieved by heat. (Tr. 263). In February of 2009,
it was noted that plaintiff’s knee pain was controlled with medication. (Tr. 271). Finally, the ALJ
pointed out that, when plaintiff was incarcerated, she did not report any significant difficulties or
pain with respect to her knee or right upper extremity. (Tr. 19).
The ALJ noted that records from Grace Hill dated July 23, 2008 reveal poor control of
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plaintiff’s glucose levels and hypertension. (Tr. 18, 232-33). The ALJ pointed out that these
conditions were treated conservatively with medication, and that plaintiff was advised to modify
her diet. (Id.). In February of 2009, it was noted that plaintiff was tolerating an increase in her
insulin dosage; plaintiff’s diet and exercise were better; and plaintiff had reached her goal with
regard to her hypertension. (Tr. 18, 271). In December of 2009, a physician at the Department
of Corrections indicated that plaintiff was receiving treatment for insulin-dependent diabetes and
hypertension, and that her condition was “satisfactory.” (Tr. 321). The ALJ also noted that
plaintiff refused treatment for her diabetes on many occasions during her incarceration. (Tr. 18).
With regard to plaintiff’s positive tuberculosis test, the ALJ noted that a chest x-ray was
negative, and that there is no evidence that plaintiff was symptomatic. (Tr. 19).
Although plaintiff argues that the ALJ failed to properly analyze plaintiff’s obesity, the
ALJ acknowledged that plaintiff’s obesity was a medically determinable impairment. (Tr. 16).
The ALJ noted that none of plaintiff’s treating providers noted functional limitations or
debilitating clinical signs resulting from plaintiff’s obesity. (Tr. 19).
The undersigned finds that the ALJ properly evaluated the medical evidence and found
that it did not support the presence of a severe impairment or combination of impairments. The
medical evidence discussed above does not support the presence of an impairment that would
have more than a minimal impact upon plaintiff’s ability to perform basic work activities.
In determining that plaintiff’s impairments were not severe, the ALJ also performed a
proper credibility analysis. “While the claimant has the burden of proving that the disability
results from a medically determinable physical or mental impairment, direct medical evidence of
the cause and effect relationship between the impairment and the degree of claimant’s subjective
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complaints need not be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
Although an ALJ may reject a claimant’s subjective allegations of pain and limitation, in doing so
the ALJ “must make an express credibility determination detailing reasons for discrediting the
testimony, must set forth the inconsistencies, and must discuss the Polaski factors.” Kelley, 133
F.3d at 588. Polaski requires the consideration of: (1) the claimant’s daily activities; (2) the
duration, frequency, and intensity of the pain; (3) aggravating and precipitating factors; (4)
dosage, effectiveness and side effects of the medication; and (5) functional restrictions. Polaski,
739 F.2d at 1322. See also Burress, 141 F.3d at 880; 20 C.F.R. § 416.929.
As discussed above, the ALJ first found that the objective medical evidence does not
support plaintiff’s subjective complaints. Although the ALJ may not discount subjective
complaints solely because they are not fully supported by the objective medical evidence, the lack
of supporting objective medical evidence may be considered as a factor in evaluating the
claimant’s credibility. See Curran-Kicksey v. Barnhart, 315 F.3d 964, 968 (8th Cir. 2003). The
ALJ noted that plaintiff was treated conservatively with medication, and neither physical therapy
nor injections were prescribed. (Tr. 20). The ALJ also pointed out that no physician placed any
restrictions on plaintiff’s ability to perform basic work activities. The presence or absence of
functional limitations is an appropriate Polaski factor, and “[t]he lack of physical restrictions
militates against a finding of total disability.” Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999).
In addition, the ALJ noted that no medical evidence supports plaintiff’s allegations that she
experiences exertional shortness of breath, leg pain that keeps her up through the night, a frequent
need to use the restroom, or a need to elevate her legs. (Tr. 19).
The ALJ next stated that there is no evidence in the record that plaintiff’s medications
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caused side effects. (Tr. 20). The presence or absence of side effects from medications is a
proper Polaski factor. See Polaski, 739 F.2d at 1322. The ALJ also pointed out that plaintiff’s
pain and blood pressure improved with medications and heat therapy. (Tr. 20). Evidence of
effective medication resulting in relief may diminish the credibility of a claimant’s complaints. See
Rose v. Apfel, 181 F.3d 943, 944 (8th Cir. 1999).
Finally, the ALJ noted that the records from the St. Charles County Department of
Corrections are replete with instances of noncompliance with diabetic treatment. (Tr. 18).
Specifically, on eighteen occasions, plaintiff either refused to take her insulin, eat her meals or
snacks, or undergo glucose testing. (Tr. 18, 275-94). Failure to follow a prescribed course of
treatment may detract from a claimant’s credibility. See O’Donnell v. Barnhart, 318 F.3d 811,
819 (8th Cir. 2003).
An administrative opinion must establish that the ALJ considered the appropriate factors.
See Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001). However, each and every Polaski
factor need not be discussed in depth, so long as the ALJ points to the relevant factors and gives
good reasons for discrediting a claimant’s complaints. See Dunahoo v. Apfel, 241 F.3d 1033,
1038 (8th Cir. 2001). In this case, the reasons given above by the ALJ for discrediting plaintiff’s
complaints of disabling pain are sufficient and his finding that plaintiff’s complaints are not entirely
credible is supported by substantial evidence.
Plaintiff also contends that the ALJ failed to properly develop the record. Specifically,
plaintiff contends that the ALJ should have ordered a consultative examination. It is true that the
ALJ has a duty to fully develop the record, particularly where a claimant is not represented by
counsel. See Driggins v. Harris, 657 F.2d 187, 188 (8th Cir. 1981). This inquiry, however, is
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limited to whether the claimant was prejudiced or unfairly treated by the ALJ’s development of
the record. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). “[A]n 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.” Anderson v. Shalala, 51 F.3d 777, 779
(8th Cir. 1999) (quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994)).
In this case, there was sufficient evidence in the record before the ALJ. The evidence of
record, including the medical record and plaintiff’s testimony, reveals that plaintiff did not have a
severe impairment or combination of impairments. As such, the ALJ did not err in failing to
further develop the record.
Plaintiff finally argues that the Appeals Council erred in failing to adequately consider new
and material evidence submitted with her request for review. Title 20 C.F.R. § 416.1476(b)
provides that "[i]n reviewing decisions based on an application for benefits, the Appeals Council
will consider the evidence in the [ALJ] hearing record and any new and material evidence only if it
relates to the period on or before the date of the [ALJ] hearing decision." "To be 'new,' evidence
must be more than merely cumulative of other evidence in the record." Bergmann v. Apfel, 207
F.3d 1065, 1069 (8th Cir. 2000). "To be 'material,' the evidence must be relevant to [the]
claimant's condition for the time period for which benefits were denied." Id. "Where . . . the
Appeals Council considers new evidence but denies review, [the Court] must determine whether
the ALJ's decision was supported by substantial evidence on the record as a whole, including the
new evidence." Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
In its order denying plaintiff’s request for review, the Appeals Council indicated that it had
received and considered the additional evidence, which were identified as records from Barnes-
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Jewish Hospital dated November 29, 2010, and December 9, 2010. (Tr. 1-2, 4-5).
The records at issue reveal that plaintiff presented to Barnes-Jewish Hospital on
November 29, 2010, with complaints of low back pain. (Tr. 386). Upon examination, plaintiff
was able to move all of her extremities well, and no edema was present. (Tr. 387). Plaintiff
underwent x-rays of the thoracic and lumbar spine, which were negative for fractures or
dislocation, but revealed some mild degenerative disc disease. (Tr. 393, 398). Plaintiff was
diagnosed with lumbar degenerative disc disease, and was given pain medication, which
controlled her pain. (Tr. 393, 403). Plaintiff returned to Barnes-Jewish Hospital with complaints
of back pain on December 9, 2010, but left before being seen by a physician. (Tr. 427).
The undersigned finds that the additional evidence submitted to the Appeals Council does
not undermine the ALJ’s determination that plaintiff’s impairments were not severe. Rather, the
evidence reveals that plaintiff suffered from mild degenerative disc disease, and that her pain was
controlled with medication. Considering this additional evidence with the evidence before the
ALJ does not lead to the conclusion that the ALJ would have reached a different result, or that
the ALJ’s decision is unsupported by substantial evidence in the record as a whole. See
Davidson, 501 F.3d at 990.
Conclusion
Substantial evidence in the record as a whole supports the decision of the ALJ finding
plaintiff not disabled because the evidence of record does not support the presence of a severe
impairment or combination of impairments. Accordingly, Judgment will be entered separately in
favor of defendant in accordance with this Memorandum.
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Dated this 6th day of September, 2012.
LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE
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