Hathman v. Astrue
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and that this case is DISMISSED. An appropriate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 09/20/2012. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT S. HATHMAN,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case number 4:11cv1036 TCM
MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Michael J.
Astrue, the Commissioner of Social Security (Commissioner), denying the applications of
Robert S. Hathman (Plaintiff) for disability insurance benefits (DIB) under Title II of the
Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income
(SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned for a
final disposition pursuant to the written consent of the parties. See 28 U.S.C. § 636(c).
Plaintiff has filed a brief in support of his complaint; the Commissioner has filed a brief in
support of his answer.
Plaintiff applied for DIB in February 2007 and SSI in March 2007, alleging he was
disabled as of August 8, 2006, by acute myocardial infarction and placement of a defibrillator
pacemaker. (R.1 at 109-22.) His applications were denied initially and after a hearing held
in February 2009 before Administrative Law Judge (ALJ) Victor L. Horton. (Id. at 11-72.)
The Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's
decision as the final decision of the Commissioner. (Id. at 1-3.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Delores E. Gonzalez, M.Ed., a vocational expert,
testified at the administrative hearing.
Plaintiff testified that, at the time of the hearing, he was 45 years old, was married, and
was living in a trailer with a girlfriend. (Id. at 26-27.) He has a twelfth grade education and
had completed a two-week computer training course when he worked with the Sullivan Police
Department. (Id. at 27-28.) He is right-handed, 6 feet 3 inches tall, and weighs 265 pounds.
(Id. at 28.) He wears glasses when reading. (Id. at 28-29.) The only household income is
what his girlfriend earns. (Id. at 29-30.) He last drew unemployment approximately ten
years ago. (Id. at 30.)
Plaintiff last worked in August 2006, driving a truck and loading and unloading feed
for the Missouri Farmers' Association (MFA). (Id.) He had worked for the MFA for six to
seven years before having a heart attack that August. (Id. at 31.) Before that, he worked for
an office supply company, assembling, delivering, and setting up furniture. (Id. at 31-32.)
He left that job after approximately one year to work for the MFA. (Id. at 32.) Before the
References to "R." are to the administrative record filed by the Commissioner with his
office supply job, he worked as a maintenance man for the "Flying J." (Id. at 32-33.) He left
that job after less than a year for better job at the office supply company. (Id. at 33.) Before
"Flying J," he drove trucks for a material supply company for six to seven years. (Id. at 3334.)
Asked to describe why he can no longer work, Plaintiff explained that he has no
energy or ability to concentrate since having his heart attack. (Id. at 35.) He cannot walk
farther than 150 feet without having to stop and breathe. (Id.) Also, he broke his tailbone
a year and a half ago when hauling cattle. (Id. at 36-37.) Asked if that was within his period
of disability, Plaintiff clarified that he had just been riding along. (Id. at 37.)
Plaintiff takes four to five pills in the morning and one in the evening. (Id. at 38.) The
only pain medication he is allowed to take is Tylenol. (Id.) He goes through a bottle of
Tylenol a week.2 (Id.) His other medications cause memory loss. (Id. at 39.)
During a normal eight-hour day, Plaintiff spends a total of, at most, thirty minutes
walking and four to five hours sitting. (Id. at 39-40.) Tailbone pain prevents him from sitting
for too long. (Id. at 52.) He cannot stand for longer than seven to eight minutes without
having to lean on something. (Id. at 41.) Hot and cold weather bother him. (Id.) He cannot
climb more than seven steps without having to stop. (Id. at 53.) Bending and stooping are
painful, making it hard for him to tie his shoes. (Id. at 53, 54.) He used to be able to do
some welding at his girlfriend's father's shop, but can no longer because of the "device" in
his chest. (Id. at 43-44.) Because of the defibrillator, he can no longer ride horses. (Id. at
He could not describe how big a bottle it was.
44.) He had occasionally tried to after the heart attack, but tired quickly. (Id.) He had also
tried tilling his garden, but found he could not hold on to the tiller. (Id. at 44-45.) Once or
twice a week, he drives. (Id. at 46.) He does not do many chores around the trailer. (Id. at
47.) He sets the trash on the porch, then someone else picks it up and burns it. (Id.) He does
not vacuum and, after ruining a load of clothes, does not do the laundry. (Id.) He
occasionally does the dishes. (Id.) After the ALJ noted that Plaintiff had a tan that made it
obvious he spent time outside, Plaintiff explained he went in and out of doors and sat outside
on a chair at a picnic table. (Id. at 56.)
After getting up in the morning, he watches television until about 9:00 a.m., visits his
girlfriend's father – he lives 75 feet away – until noon, returns to the trailer with the father
and has lunch, and then opens gates for the father if he is feeding cattle. (Id. at 48.)
He smokes half to three-quarters of a pack of cigarettes a day. (Id. at 46.) His doctor
has told him to quit. (Id.) Before the heart attack, he smoked two to three packs a day. (Id.
The last time he traveled farther than 100 miles from home was when he and his
girlfriend went to Kentucky two years earlier. (Id. at 46-47.)
As of January 31, 2009, he no longer has health insurance. (Id. at 49.)
His doctor, Dr. Fredman, has prohibited him from horseback riding, welding, and
working on cars when they are running. (Id. at 50.) He is to stay away from electrical fields
and is to hold a cellular telephone on the opposite side from his heart. (Id.)
Ms. Gonzalez, testifying without objection as a vocational expert (VE), described
Plaintiff's past work in terms of its skill and exertional levels. (Id. at 58-59.)
She was then asked to assume a hypothetical individual with Plaintiff's education,
training, and work experience who could lift and carry twenty pounds occasionally, ten
pounds frequently, stand and walk for two hours out of eight, and sit for six hours out of
eight, but who could only occasionally climb stairs and ramps; never climb ropes, ladders,
or scaffold; and had to avoid concentrated exposure to cold, heat, vibration, and hazardous
heights and machinery. (Id. at 60.) This person could not perform Plaintiff's past relevant
work. (Id.) He could, however, perform other jobs, including those of an order clerk,
addresser, and call-out operator. (Id.) These jobs exist in significant numbers in the regional
and national economies. (Id.)
If this hypothetical person could lift and carry no more than ten pounds, needed a
sit/stand option with the ability to frequently change positions, and could only occasionally
stoop and kneel, this person would be able to perform those same three jobs. (Id. at 60-61.)
If this hypothetical person needed an "at will" sit/stand option and more than three
breaks during an eight-hour day, there were no jobs the person could perform. (Id. at 61.)
If Plaintiff's descriptions about his functional limitations, particularly his need to rest
and his problems with concentration and memory, were accepted, there were no jobs he could
perform. (Id. at 62.)
The VE stated that her testimony was consistent with the Dictionary of Occupational
Titles (DOT). (Id. at 63.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms completed as part of the
application process, documents generated pursuant to Plaintiff's applications, records from
health care providers, and two assessments of his functional limitations.
When applying for DIB and SSI, Plaintiff completed a Disability Report. (Id. at 15058.) He listed his height as 6 feet 3 inches tall and his weight as 258 pounds. (Id. at 150.)
He is limited in his ability to work by a heart attack. (Id. at 151.) Now, his chest starts
hurting as soon as he tries to do anything physical and he then has to sit down and wait. (Id.)
He can walk no farther than 100 feet. (Id.) His heart attack occurred on August 8, 2006, and
prevented him from working that same day. (Id.) His medications include Lipitor for high
cholesterol; Lisinopril, Plavix, and Toprol for his heart; and Protonix for acid reflux. (Id. at
Plaintiff also completed a Function Report. (Id. at 142-49.) Asked to describe what
he did from when he awoke until he went to bed at night, he reported that he ate breakfast,
watched television, walked "a little" outside, went to his girlfriend's father's shop, ate a
sandwich at noon, returned to the shop, ate supper, watched television, and went to bed. (Id.
at 142.) He does not take care of anyone else; he does feed two dogs. (Id. at 143.) He no
longer sleeps through the night. (Id.) He has no problem with his personal grooming tasks.
(Id.) His girlfriend reminds him to take his medication. (Id. at 144.) He prepares sandwiches
and microwaved frozen dinners on the weekends. (Id.) He takes the trash out every
Saturday. (Id.) His girlfriend does the house and yard work. (Id. at 145.) He goes grocery
shopping with his girlfriend. (Id.) He can only hunt or fish when the temperature permits;
he can no longer go horseback riding. (Id. at 146.) He speaks with his sister over the
telephone, sees people at the store, and attends children's3 programs at school. (Id.) He
regularly goes to Wal-Mart, a grocery store, and the NAPA4 store. (Id.) His impairments
adversely affect his abilities to lift, squat, walk, climb stairs, remember, and complete tasks.
(Id. at 147.) They do not affect his abilities to, among other things, concentrate, bend,
understand, or follow instructions. (Id.) He cannot lift over 20 pounds or walk farther than
100 yards before having to rest for 20 to 30 minutes. (Id.) He finishes what he starts. (Id.)
He gets along okay with authority figures. (Id. at 148.) He can handle changes in routine,
but gets upset or angry when under stress. (Id.)
Two months after this report was filed, an agency employee called Plaintiff about
updating his activities of daily living form. (Id. at 159.) He reported that he constantly feels
tired and cannot do anything for longer than ten to fifteen minutes.. (Id.) He tries to walk
three times a week, twenty minutes each time on his treadmill at 2.8 miles per hour. (Id.)
By the end of the time, his legs are burning and he is out of breath. (Id.) He had tried to till
his garden and plant cucumbers, but had to rest for twenty minutes after working for only ten.
(Id.) He does not know what job he can do because he is "only capable of sitting and doesn't
have the interest or skills for a sit down job." (Id.)
Plaintiff has five children; they do not live with him.
National Automotive Parts Association.
Plaintiff's earnings record shows consistent earnings for the years from 1978 to 2006,
inclusive. (Id. at 126.) In 2005, his annual reported earnings were $24,5495; in 2006, they
were $17,261. (Id.)
Plaintiff completed a Disability Report – Appeal form after the initial denial of his
applications. (Id. at 163-69.) Since he had completed the initial report, there had been no
changes in his impairments and no new impairments. (Id. at 164.)
The medical record before the ALJ primarily are of Plaintiff's heart condition and are
summarized below in chronological order.
On August 8, 2006, Plaintiff went to the Missouri Baptist Hospital at Sullivan (MBHS) emergency room at 4 o'clock in the morning with complaints of sporadic chest pain that
had started the day before and had woken him up that night. (Id. at 231-51.) He had an
abnormal electrocardiogram (EKG), and was transferred by air to Missouri Baptist Medical
Center (MBMC). (Id. at 239.) Plaintiff was admitted to MBMC and diagnosed with severe
single vessel coronary artery disease with total occlusion of the left anterior descending
(LAD) artery and moderate left ventricular dysfunction. (Id. at 274.) He underwent a left
heart catheterization, bilateral coronary angiograms, a complex percutaneous transluminal
coronary angioplasty (PTCA), and intracoronary stenting of the LAD. (Id. at 272.) He was
discharged on August 11 with diagnoses of (1) acute anterior wall myocardial infarction; (2)
status post PTCA and stenting; (3) hypercholesterolemia; (4) smoking abuse; and (5) mild
mitral insufficiency. (Id. at 260.) It was noted on the discharge summary that Plaintiff had
The amounts have been rounded to the nearest dollar.
"done very well post infarction," was "very motivated," and was "resigned to the fact he must
never smoke again." (Id.) Aggressive antiplatelet therapy and post myocardial infarction
care were recommended, as was the necessity for Plaintiff to stop smoking. (Id. at 272, 266.)
Plaintiff returned to MBH-S to see Robert B. Lehman, M.D., for a follow-up visit on
August 30. (Id. at 252.) It was noted that he still smoked. (Id.) He was continued on his
Plaintiff underwent various tests on September 19 and 20. He had suboptimal results
on the stress test, having been able to achieve only 85% of the predicted heart rate for his age
and 8 METS (metabolicequivalents). (Id. at 205-06, 208, 212-28, 230, 346.) Myocardial
radionuclide imaging revealed "a large area of fixed perfusion defect in the anterior and
apical wall as well as in the inferior wall consistent with significant infarction. There [was]
no evidence of reperfusible ischemia." (Id. at 207.) It also revealed "marked diffuse wall
abnormalities" and "global hypokinesis6 with most severe akinesis7 noted in the distal aspect
of the spetum and base of the heart." (Id. (footnotes added)). His ejection fraction was 43
percent; normal was greater than 45 percent. (Id.)
Hypokinesis is "[d]iminished or slow movement." Stedman's Medical Dictionary, 836 (26th
ed. 1995) (Stedman's).
Akinesis is the "[a]bsence or loss of the power of voluntary movement . . . ." Stedman's at
It was then decided that Plaintiff wear a Holter monitor8 for twenty-four hours. (Id.
at 229, 203-04.) The results were read on October 4 and indicated an average heart rate of
73 beats per minute. (Id. at 195, 200-02.) Three isolated ventricular premature complexes
and 88 isolated or paired supraventricular ectopic (out of place9) complexes were seen. (Id.)
Eight diary entries noted symptoms ranging from lightheadedness to chest pain to left arm
numbness. (Id.) "No correlating arrhythimas were noted." (Id.) An echocardiogram was
abnormal with evidence of an anteroapical infarction; a left ventricular ejection fraction of
43 percent; mild left atrial enlargement; mild mitral insufficiency; and mild tricuspid
insufficiency with mild elevation of the right ventricular systolic pressure at 39 mmHg
(millimeters of Mercury). (Id. at 196-99.)
On October 25, Dr. Lehman noted that Plaintiff was stable and was okay to return to
light duty. (Id. at 180, 340, 342.) He was to return in two months. (Id.) Two months later,
Plaintiff reported to Dr. Lehman that he easily became short of breath, could not work
"much," and was applying for disability. (Id. at 344.)
"A Holter monitor is a [battery-operate] machine that continuously records the heart's
rhythms," and is carried in a pocket or in a small pouch worn around the neck or waist. Nat'l Inst.
of Health, Holter monitor (24h), http://www.nlm.nih.gov/medlineplus/ency/article/003877.htm (last
visited Sept. 19, 2012). A person wearing a monitor is to keep a record of his or her symptoms to
be matched by the doctor to the monitor findings. Id.
See Stedman's at 542.
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Eight days later, on December 28, a test revealed a decreased left ventricular ejection
fraction of approximately 33 percent, indicative of Class II congestive heart failure.10 (Id. at
185, 275, 281.)
Plaintiff reported to Dr. Lehman in February 2007 that he easily became short of
breath. (Id. at 338, 372.) Dr. Lehman noted that Plaintiff was smoking again. (Id.) He
discussed with Plaintiff referring him to a specialist for a possible implantable cardioverter
defibrillator (ICD). (Id.)
At Dr. Lehman's recommendation, Plaintiff was seen by Carey S. Fredman, M.D., a
cardiologist, on March 8. (Id. at 313-14, 317-18.) Dr. Fredman noted that Plaintiff continued
to smoke heavily, but had no other medical problems, e.g., hypertension, diabetes, or
pulmonary diseases. (Id. at 317.) Since his August hospitalization, he tired easily; also, on
exertion, he became short of breath and, occasionally, had chest pains. (Id.) He had a 20
percent two-year risk of life-threatening ventricular arrhythmia, indicating the need for a
defibrillator pacemaker "to protect him from sudden cardiac death." (Id. at 318.) Dr.
Fredman explained to Plaintiff that an electrophysiologic study would assist in (a) assessing
his condition, (b) seeing what, if any, arrhythimas were inducible, and (c) determining the
best selection and programming of the defibrillator. (Id. at 318.) Plaintiff wished to proceed.
as recommended. (Id.)
The symptoms of Class II heart failure are "[s]light limitation of physical activity.
Comfortable at rest, but ordinary physical activity results in fatigue, palpitation, or dyspnea [shortness
Heart Failure society of America, Quest ions About HF,
http://www.abouthf.org/questions_stages.htm (last visited Sept. 19, 2012).s
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Consequently, Plaintiff was admitted to MBMC on April 16. (Id. at 279-311, 315,
Following an electrophysiologic study, Plaintiff received a single chamber
defibrillator pacemaker. (Id. at 294-95, 303-04.) A pre-discharge electrophysiologic study
indicated that the pacemaker was functioning normally. (Id. at 311, 328.) Plaintiff was
discharged on April 18 (Id. at 280.) He was to follow-up with Dr. Fredman the next month.
(Id. at 316.)
Plaintiff did see Dr. Fredman in May; the defibrillator was found to be functioning
normally.11 (Id. at 354.) Plaintiff saw Dr. Lehman in June, reporting chronic fatigue and
lightheadedness and occasional sharp, shooting chest pains. (Id. at 371.) His prescriptions
were renewed. (Id.)
In September, Plaintiff reported to Lynelle Jolliff, see note 11, supra, that he was
experiencing occasional dizziness at any time and in any position. (Id. at 353.) In December,
he informed Dr. Lehman that he was under a lot of stress, including financial, and had a
"'butterfly feeling in [his] chest.'" (Id. at 370.) He also had palpitations and fatigue. (Id.)
Two weeks later, Plaintiff informed Ms. Jolliff that he was doing well, although he continued
to experience dizziness. (Id. at 352.)
In February 2008, Plaintiff saw Paul Metcalf, D.O., for complaints of a cough,
congestion, fevers, chills, wheezing, and shortness of breath for the past three days. (Id. at
359.) He denied any chest pain or palpitations. (Id.) On examination, he was not in acute
Plaintiff saw Dr. Fredman or Lynelle Jolliff, a nurse practitioner, again in September and
December 2007 and April, June, and October 2008. (Id. at 349-53.) His defibrillator was found to
be functioning normally at each visit. (Id.)
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distress and was alert and oriented to time, place, and person. (Id.) He had a regular heart
rate and rhythm and no murmur. (Id.) The impression was of bronchitis; upper respiratory
infection; and tobacco abuse. (Id.) He was prescribed antibiotics and a cough syrup. (Id.)
He stated that he would try to stop smoking. (Id.)
When seeing Ms. Jolliff in April, Plaintiff reported he was doing well and had no
complaints. (Id. at 351.)
Plaintiff saw Dr. Lehman in July, reporting being very tired since having had a dream
that he had had intense chest pain. (Id. at 369.) He was still smoking. (Id.) The same
month, Plaintiff had a pharmacologic stress test with myocardial perfusion imaging. (Id. at
360, 373.) He had an ejection fraction of 46 percent; normal was greater than 50 percent.
(Id.) The impression was of "[a]bnormal myocardial perfusion imaging with evidence of large
anterior infarct." (Id.) Medical therapy and aggressive risk factor modifications were
When seeing Plaintiff on August 6 about spots on his right foot, Deborah A. Depew,
D.O., noted that he had not had bloodwork, including a lipid profile, done that year and
scheduled such. (Id. at 358.) Plaintiff denied any chest pain or palpitations. (Id.) Plaintiff
returned two weeks later with his girlfriend, reporting coccyx (the tailbone) pain that had
been intermittent for the past year and worse in the last two weeks. (Id. at 356-57.) An x-ray
was taken, following which Dr. Depew informed Plaintiff that he had probably fractured and
displaced the coccyx. (Id. at 356.) Plaintiff then remembered having been butted into a
metal gate the year before by a cow he was trying to load onto a trailer. (Id.) Dr. Depew
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opined that the twenty pounds Plaintiff had gained since then had aggravated the fracture.
(Id.) He was to participate in physical therapy for four visits for pelvic stretches. (Id.) If
there was no improvement then, injections would be considered. (Id.)
One week later, on August 27, Plaintiff reported to Dr. Lehman that he was doing
well. (Id. at 367.) He had no chest pain. (Id.)
In October, he told Ms. Jolliff he was doing well with the exception of "some lower
back discomfort." (Id. at 349.)
Plaintiff saw Dr. Lehman again in January 2009 for his five-month follow-up,
reporting that he still could not do much because of fatigue. (Id. at 366.) He had no
symptoms of congestive heart failure or of angina. (Id.) He continued to smoke. (Id.) His
prescriptions were renewed. (Id.)
Also before the ALJ was an assessment of Plaintiff's physical residual functional
capacity and questionnaires completed by Dr. Lehman.
In May 2007, a Physical Residual Functional Capacity Assessment (PRFCA) of
Plaintiff was completed by Dr. R. Stoecker.12 (Id. at 329-34.) The primary diagnosis was
ischemic heart disease; the secondary diagnosis was stats post automatic implanted cardiac
defibrillator. (Id. at 329.) These impairments resulted in exertional limitations of Plaintiff
being able to occasionally lift or carry twenty pounds; frequently lift or carry ten pounds;
stand or walk for a total of at least two hours in an eight-hour workday; and sit for
Dr. Stoecker listed his medical specialty code as "19" – internal medicine. See POMS
Section DI 26510.090, https://secure.ssa.gov/poms.nsf/lnx/0426510090 (last visited Sept. 19, 2012).
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approximately six hours in an eight-hour day. (Id. at 330.) His ability to push or pull was
otherwise unlimited. (Id.) His only postural limitation was a need to never climb ladders,
ropes, or scaffolds. (Id. at 331-32.) He had no manipulative, visual, or communicative
(Id. at 332-33.) He had environmental limitations of needing to avoid
concentrated exposure to extreme cold or heat. (Id. at 333.) Dr. Stoecker opined that an
ability to function at the sedentary level was not inconsistent with a Class II heart failure. (Id.
In December 2007, Dr. Lehman answered three questions about his assessment of
Plaintiff for purposes of his DIB and SSI claims. (Id. at 336, 365.) The first question asked
for his current diagnoses, "recommended treatment, and/or restrictions." (Id.) He responded
with diagnoses of ischemic cardiomyopathy, status post "ICD," and history of myocardial
infarction. (Id.) The recommended treatment was simply described as "medical." (Id.)
Asked if Plaintiff's endurance was affected by his impairments and, if so, how many hours
he would need to rest in an eight-hour day, Dr. Lehman replied that his endurance was
affected and he would need to rest for four hours. (Id.) Asked if Plaintiff could perform
sedentary work full-time, Dr. Lehman responded that he could not. (Id.) He did not, as
requested, state the reasons for his answer. (Id.)
Asked in January 2009, if he still thought Plaintiff could not engage in full-time,
sedentary work, Dr. Lehman confirmed that he did. (Id. at 364.) As before, he did not
explain his answer, as requested. (Id.)
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The ALJ's Decision
Evaluating Plaintiff's applications under the Commissioner's five-step procedure, the
ALJ found at step one that Plaintiff met the insured status requirements of the Act through
December 31, 2011, and had not engaged in substantial gainful activity since his August 2006
alleged disability onset date. (Id. at 15-16.)
At step two, the ALJ found that Plaintiff had severe impairments of chronic ischemic
heart disease and cardiac dysrythmia, and at step three that Plaintiff did not have an
impairment of combination of impairments that met or medically equaled a listing
impairment, including Listing 4.00 for the cardiovascular system. (Id. at 16.)
The ALJ next addressed the question at step four of Plaintiff residual functional
capacity (RFC). (Id. at 16-19.) He found that Plaintiff had the RFC to perform the full range
of sedentary work13 with restrictions of having a sit/stand option at the work site allowing him
to work while seated and to frequently change positions; to only occasionally climb stairs and
ramps, but never to stoop, kneel, or climb ropes, ladders, or scaffolds; and to avoid
concentrated exposure to cold, heat, vibrations, and hazards of heights and machinery. (Id.
at 17.) In explaining his RFC findings, the ALJ summarized the medical records. He noted
that a Class II congestive heart failure refers to the New York Heart Association Functional
Classification (NYHA).14 (Id.) Under that classification system, if Plaintiff "were able to
ascend one flight of stairs without symptoms or walk one block with a mild to moderate
"Sedentary work involves lifting no more than 10 pounds at a time and occasional walking
and standing." 20 C.F.R. § 404.1567(a).
See note 10, supra.
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incline, he would be classified as NYHA Class I, unless that same amount of activity resulted
in excessive fatigue or dyspnea, in which case he would be NYHA Class II. If walking from
the kitchen to the living room caused symptoms, he would be NYHA Class III." (Id.) The
ALJ noted Dr. Lehman's report that Plaintiff would need to rest four hours out of eight, but
also noted that the record indicated that he spent his days "performing relatively sedentary
activity without needing to rest." (Id. at 18.) Although Plaintiff reported that he could not
do much due to fatigue, the record did not reflect any exertional symptoms or angina; and,
Plaintiff continued to smoke. (Id.) He had been described as doing well; his pacemaker was
functioning normally. (Id.) Plaintiff had not reported any fatigue, lightheadedness, or
shortness of breath after September 2007. (Id.) When testifying about his day, Plaintiff had
not cited the need to rest or nap. (Id.) The ALJ found that Plaintiff's description of chronic
severe fatigue, shortness of breath, and pain were to be given much weight because they were
inconsistent with the preponderance of the evidence. (Id. at 19.) That evidence established
that Plaintiff was not able to maintain the level of activity he formerly did; however, it did
not establish that he could not "sustain relatively sedentary work activity over the course of
a regular workday." (Id.) The ALJ also noted that Plaintiff had not done the one thing he
needed to do as part of his treatment – stop smoking. (Id.) "[His] refusal to stop smoking
suggests that he does not consider his impairments so 'severe and disabling' as to require him
to stop smoking." (Id.)
At step four, the ALJ found that Plaintiff could not perform his past relevant work.
(Id. at 20.) At step five, the ALJ found that, with his age, education, work experience, and
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RFC, Plaintiff could perform the jobs described by the VE. (Id. at 20-21.) He was not,
therefore, disabled within the meaning of the Act. (Id. at 21.)
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable
physical or mental impairment," which must last for a continuous period of at least twelve
months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). The impairment
suffered 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." 42 U.S.C. §
The Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010); Gragg v. Astrue, 615 F.3d 932, 937 (8th Cir. 2010); Moore v. Astrue, 572
F.3d 520, 523 (8th Cir. 2009). "Each step in the disability determination entails a separate
analysis and legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006). First,
the claimant cannot be presently engaged in "substantial gainful activity." See 20 C.F.R.
§§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must have a
severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A "severe impairment" is
"any impairment or combination of impairments which significantly limits [claimant's]
physical or mental ability to do basic work activities . . . ." Id. Accord Martise v. Astrue,
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641 F.3d 909, 923 (8th Cir. 2011); Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).
Conversely, "[a]n impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant's physical or mental ability to work," i.e., "[it]
would have no more than a minimal effect on the claimant's ability to work . . . ." Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007). "Severity is not an onerous requirement for the
claimant to meet, but it is also not a toothless standard . . . ." Id. at 708 (internal citations
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, he is presumed to be disabled and is entitled to benefits.
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). "[RFC] is not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real world."
Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (internal quotations omitted).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual's own description
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of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011). "'The need for medical evidence,
however, does not require the [Commissioner] to produce additional evidence not already
within the record. [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.'" Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (quoting
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)) (second alteration in original).
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002)). This evaluation requires that the ALJ consider "'(1) the
claimant's daily activities; (2) the duration, intensity, and frequency of pain; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; (5) any functional restrictions; (6) the claimant's work history; and (7) the
absence of objective medical evidence to support the claimant's complaints.'" Buckner v.
Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore, 572 F.3d at 524, which cited
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). "'The credibility of a claimant's
subjective testimony is primarily for the ALJ to decide, not the courts.'" Wagner, 499 F.3d
at 851 (quoting Pearsall, 274 F.3d at 1218). After considering the Polaski factors, the ALJ
must make express credibility determinations and set forth the inconsistencies in the record
which caused the ALJ to reject the claimant's complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
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At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work
[claimant has] done in the past." 20 C.F.R. §§ 404.1520(e), 416.920(e). The burden at step
four remains with the claimant to prove his RFC and establish that he cannot return to his
past relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928
(8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the claimant
maintains the RFC to perform a significant number of jobs within the national economy.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d
820, 824 (8th Cir. 2001). See also 20 C.F.R. §§ 404.1520(f), 416.920(f). The Commissioner
may meet his burden by eliciting testimony by a VE, Pearsall, 274 F.3d at 1219, based on
hypothetical questions that "'set forth impairments supported by substantial evidence on the
record and accepted as true and capture the concrete consequences of those impairments,'"
Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359,
365 (8th Cir. 2007)).
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
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adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the
Court must consider evidence that supports the decision and evidence that fairly detracts from
that decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The
Court may not reverse that decision merely because substantial evidence would also support
an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730. "'If, [however,] after reviewing the record, the court
finds it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the ALJ's findings, the court must affirm the ALJ's decision." Partee,
638 F.3d at 863 (quoting Goff, 421 F.3d at 789). See also Owen v. Astrue, 551 F.3d 792,
798 (8th Cir. 2008) (the ALJ's denial of benefits is not to be reversed "so long as the ALJ's
decision falls within the available zone of choice") (internal quotations omitted).
Plaintiff argues that the ALJ erred by failing to (1) give the proper weight to the
opinion of Dr. Lehman and (b) find him credible.
Dr. Lehman's Opinion. Dr. Lehman opined in December 2007 that Plaintiff would
need to rest for four hours during an eight-hour day and that he could not perform sedentary
work. Thirteen months later, he repeated his opinion that Plaintiff could not engage in fulltime sedentary work. The ALJ noted, and disagreed, with this assessment. Plaintiff
challenges that decision.
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"A treating physician's opinion is given controlling weight if it 'is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [a claimant's] case record.'" Tilley v. Astrue, 580 F.3d
675, 679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration in original); accord
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010); Davidson v. Astrue, 578 F.3d 838,
842 (8th Cir. 2009). "[W]hile a treating physician's opinion is generally entitled to
substantial weight, such an opinion does not automatically control because the [ALJ] must
evaluate the record as a whole." Wagner, 499 F.3d at 849 (internal quotations omitted);
accord Martise, 641 F.3d at 925. Thus, "'an ALJ may credit other medical evaluations over
that of the treating physician when such assessments are supported by better or more
thorough medical evidence.'" Id. (quoting Brown v. Astrue, 611 F.3d 909, 951 (8th Cir.
2011)). And, "'[w]hen deciding how much weight to give a treating physician's opinion, an
ALJ must also consider the length of the treatment relationship and the frequency of
examinations.'" Id. (quoting Brown, 611 F.3d at 951). See also 20 C.F.R. §§ 404.1527(d)
and 416.927(d) (listing six factors to be evaluated when weighing opinions of treating
physicians, including supportability and consistency).
In December 2007, Plaintiff had informed Dr. Lehman that he was under stress,
including financial stress. That same month, he told Ms. Jolliff that he was doing well,
although continuing to experience some dizziness. Two months later, he informed Dr.
Metcalf that he was not having any chest pain or palpitations. Four months later, he again
informed Ms. Jolliff that he was doing well; he had no complaints.
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"It is permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician's clinical treatment notes," Davidson, 578 F.3d at 843, or
when it consists of conclusory statements, Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010). See also Clevenger v. S.S.A., 567 F.3d 971, 975 (8th Cir. 2009) (affirming ALJ's
decision not to follow opinion of treating physician that was not corroborated by treatment
notes); Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) ("The weight given a
treating physician's opinion is limited if the opinion consists only of conclusory statements.").
Dr. Lehman's opinions are not supported by his findings and are conclusory. Indeed, Dr.
Lehman failed to respond to the request in both questionnaires that he explain his opinions
about whether Plaintiff could perform sedentary work.
The only support for Dr. Lehman's opinion about Plaintiff's ability to work is
Plaintiff's own reports of his symptoms. Those reports begin the visit after Dr. Lehman
released him to return to light duty. And, as noted by the Commissioner, Dr. Lehman's terse
opinion, unexplained as requested, in January 2009 follows Plaintiff's report to him that he
could not do much because of fatigue. "The ALJ was entitled to give less weight to [Dr.
Lehman's] opinion, because it was based largely on [Plaintiff's] subjective complaints rather
than on objective evidence." Kirby, 500 F.3d at 709; accord Renstrom v. Astrue, 680 F.3d
1057, 1064 (8th Cir. 2012).
Credibility. Plaintiff also argues that the ALJ erred by not finding his subjective
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"'If an ALJ explicitly discredits the claimant's testimony and gives good reason for
doing so, [the Court] will normally defer to the ALJ's credibility determination.'" Renstrom,
680 F.3d at 1065 (quoting Juszcyzk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008)). One
reason given by the ALJ was the lack of supporting objective evidence. Although "'[a]n ALJ
may not discount a claimant's subjective complaints solely because the objective medical
evidence does not fully support them," id. at 1066 (quoting Wiese, 552 F.3d at 733), the
absence of objective medical evidence to support a claimant's complaints is a proper
consideration when assessing that claimant's credibility, see Mouser v. Astrue, 545 F.3d
634, 638 (8th Cir. 2008).
Another reason given for discounting Plaintiff's credibility was his failure to stop
smoking as instructed by Dr. Lehman and the heart surgeons. This is a proper consideration.
See Id. (finding that ALJ properly construed claimant's failure to stop smoking as a failure
to follow a prescribed course of treatment, a failure that was properly considered by the ALJ
when making his credibility determination); Wagner, 499 F.3d at 851 ("A failure to follow
a recommended course of treatment also weighs against a claimant's credibility.") (internal
Plaintiff argues that the ALJ erred when assessing his daily activities and finding them
to be inconsistent with his claims of disabling fatigue that preclude even sedentary work. For
instance, Plaintiff cites his reports of being tired with minimal activities and spending most
of his day sitting and watching television. He also states that there is no evidence he helps
in his girlfriend's father's shop or to move cattle. Plaintiff is correct, in part – there is no
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evidence he helps in the shop. There is, however, evidence he helps move cattle; the
evidence is his description to Dr. Depew of how he fractured his tailbone. There is also
evidence that he hunts and fishes when the weather permits, an environmental limitation
included by the ALJ in his RFC findings. He walks on a treadmill three times a week for
twenty minutes. Plaintiff cites limitations he described to the agency employee in May 2007
of having to rest after working in his garden for ten minutes and of constantly feeling tired.
The ALJ was not obligated to accept without question Plaintiff's self-reported limitations on
his daily activities allegedly caused by his medical impairments. See Jones, 619 F.3d at 975
(affirming adverse credibility determination of ALJ who found claimant's activities to be
limited on a "self-imposed voluntary basis" rather than due to her medical condition); Choate
v. Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (finding ALJ's adverse credibility
determination was supported by record, including the inconsistencies between claimant's
"self-reported limitations on his daily activities" and the medical record).
In the same report of contact cited by Plaintiff in support of his credibility argument,
he informed the agency employee that he did not know what job he could do because he was
"only capable of sitting and doesn't have the interest or skills for a sit down job." (R. at 159.)
The VE, however, knew what jobs he could do with a capacity for only sedentary work and
a need for a sit/stand option and frequent change of position.
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Considering all the evidence in the record, including that which detracts from the
ALJ's conclusions, the Court finds that there is substantial evidence to support the ALJ's
decision. "If substantial evidence supports the ALJ's decision, [the Court] [should] not
reverse the decision merely because substantial evidence would have also supported a
contrary outcome, or because [the Court] would have decided differently." Wildman, 596
F.3d at 964. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and that this case is DISMISSED.
An appropriate Judgment shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 20th day of September, 2012.
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