McMillan v. Social Security Administration

Filing 20

MEMORANDUM AND ORDER-- IT IS HEREBY ORDERED that the relief sought by Claimant in her Complaint and Brief in Support of Complaint is DENIED. [Doc. 1 , 16 ] A separate Judgment will accompany this Memorandum and Order. Signed by Magistrate Judge Nannette A. Baker on 03/28/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NANCY E. MCMILLAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No.

4:11-CV-1948-NAB

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of
the Commissioner’s final decision denying Nancy E. McMillan’s (“McMillan”) applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). McMillan
alleges disability due to depression, diabetes, obstructive sleep apnea, neuropathy, and edema.
(Tr. 40, 267.) For the reasons set forth below, the Administrative Law Judge’s (“ALJ”) decision
will be affirmed.
I.

PROCEDURAL BACKGROUND

On March 11, 2009, McMillan completed a Title II application for a period of disability
and DIB and a Title XVI application for SSI. (Tr. 182, 189.) She alleges an onset date of August
22, 2007. (Tr. 35.) The Social Security Administration initially denied McMillan’s claims on
June 3, 2009, and she timely filed a written request for hearing on July 6, 2009. (Tr. 91-95, 97.)
A hearing was scheduled for May 20, 2010, but was continued until September 28, 2010 so that
McMillan could obtain representation. (Tr. 72-78.) On September 28, 2010, McMillan appeared
and testified at a hearing in St. Louis, Missouri. (Tr. 58-68.) An impartial vocational expert
1 

(“VE”), Matthew C. Lampley (“Lampley”), also testified via telephone during the hearing. (Tr.
16.) On January 28, 2011, the Administrative Law Judge (“ALJ”) issued a written opinion
upholding the Social Security Administration’s denial of benefits. (Tr. 13-24.) On March 14,
2011, McMillan filed a request for review of the ALJ’s hearing decision. (Tr. 6-11.) The
Appeals Council declined to review the decision of the ALJ. (Tr. 1-5.) The ALJ’s decision thus
stands as the final decision of the Commissioner. McMillan filed this appeal on November 8,
2011.
II.

DECISION OF THE ALJ

The ALJ found that McMillan met the insured status requirements through March 31,
2011. (Tr. 18.) The ALJ found that McMillan had not engaged in substantial gainful activity
since August 22, 2007, the alleged onset date. (Tr. 18.) The ALJ found that she had the severe
impairments of obesity, obstructive sleep apnea, diabetes mellitus, neuropathy since April 2010,
carpal tunnel syndrome, depression, and post-traumatic stress disorder. (Tr. 18.) The ALJ found
that McMillan did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19.)
The ALJ determined that McMillan had the residual functional capacity (“RFC”) to perform less
than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (Tr.
20.) He found that she could lift and carry 20 pounds occasionally and 10 pounds frequently;
stand and walk for a total of 6 hours in an 8-hour day; and sit for a total of 6 hours in an 8-hour
day; but she would need to change positions for 1-2 minutes every hour. (Tr. 20.) She can
occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but she cannot
climb ladders, ropes, or scaffolds. (Tr. 20.) She can occasionally perform handling and fingering
bilaterally. (Tr. 20.) Due to her mental impairments, the claimant is limited to simple routine
2 

tasks. (Tr. 20.) Based upon McMillan’s RFC, the ALJ found that she could not perform any
past relevant work. (Tr. 22.) Considering McMillan’s age, education, work experience, and
RFC, however, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that McMillan could perform. (Tr. 23.) Thus the ALJ found McMillan was
not disabled under the meaning of the Social Security Act. (Tr. 24.)
III.
A.

ADMINISTRATIVE RECORD

Hearing Testimony
The ALJ heard testimony from McMillan, who was represented by an attorney, and

vocational expert Matthew Lampley. (Tr. 35-57.)
1.

Claimant’s Testimony

McMillan testified as follows. She graduated from high school and had some college
credits, but had not obtained a post-secondary education degree. (Tr. 35-36.) She is single and
has two adult children, aged eighteen (18) and twenty-four (24). (Tr. 36.) At the time of the
hearing, her only income was in the form of child support payments for one of her children. (Tr.
36.) McMillan also receives Medicaid. (Tr. 36.)
Since 1995, she has worked as a porter, janitor, home health aide, cashier, assistant
manager at a restaurant, and a phone operator for an adult phone service. (Tr. 36-37.) She
testified that, with the exception of being a phone operator, her past work required her to stand
and walk all day, and lift more than twenty (20) pounds. (Tr. 38.) Her most recent job was at
Mitch Mertz Maintenance (“Mertz”), beginning August 13, 2009. (Tr. 39.) At Mertz, McMillan
served as a janitor at a private school. (Tr. 39.) McMillan testified that she worked twenty-five
(25) hours per week at Mertz and was required to lift close to one-hundred (100) pounds. (Tr.

3 

39.) McMillan testified that she had to stop working in May or June of 2010 because her
diabetes, neuropathy, and edema prevented her from performing her job duties. (Tr. 40.)
McMillan testified that she has pain in her back, fingers, and face. (Tr. 42.) She has a
facial tick that is exacerbated by her sleep apnea. (Tr. 42.) She gets less than four (4) hours of
sleep a night and does not find that CPAP therapy helps her fatigue. (Tr. 42.) McMillan has
been going to a psychiatrist for depression and post-traumatic stress disorder (“PTSD”) since
2005. (Tr. 43-44.) She testified that these mental conditions prevent her from being in public or
dealing with social situations. (Tr. 44.) She cannot motivate herself to get out of bed in the
morning because of her depression and has lost jobs in the past because she failed to come to
work. (Tr. 44-45.) Medication has reduced her depression to some degree. (Tr. 45.)
McMillan testified that her diabetes has caused her to gain forty (40) to fifty (50) pounds
in the past year. (Tr. 47.) Stress causes her to lose concentration and she rarely leaves the house.
(Tr. 48.) When she does leave the house, the stress of the situation often leads to panic or
anxiety attacks. (Tr. 49.) She has experienced mood swings in the past and also has issues
getting along with her supervisors and co-workers. (Tr. 49-50.) McMillan testified that she has
trouble taking orders from others because of sexual and verbal abuse she suffered as a child, two
rapes as an adult, and robbery and assaults. (Tr. 50-51.) She has frequent nightmares about this
abuse and has attempted suicide in the past. (Tr. 51-52.)
McMillan has swelling in her hands and feet two to three times per week. (Tr. 40.) She
testified that she could sit in a chair for a couple hours at a time before she experiences painful
swelling in her feet and ankles, or hands and wrists if she is using a computer. (Tr. 53.) She is
only able to stand in one spot for twenty (20) to thirty (30) minutes before she becomes too
fatigued to stand. (Tr. 53-54.) She has trouble manipulating small objects and cannot write with
4 

a pen for an extended period of time. (Tr. 54-55.) She has trouble lifting things, especially if
they are on the ground and she must bend over to pick them up. (Tr. 54, 56.)
2.

VE Mathew C. Lampley’s Testimony

The ALJ first asked the VE to classify McMillan’s past work in terms of job titles, skill
level, exertional level, and duties. (Tr. 58-59.) The VE was able to identify several of her past
occupations in the Dictionary of Occupational Titles (“DOT”), and he provided the specific
vocational preparation (“SVP”) level for each position.1 (Tr. 59.)
The VE testified that McMillan’s work as a janitor required medium exertion with an
SVP of 3. (Tr. 59.) Her work as a cashier required light exertion with an SVP of 2. (Tr. 59.)
Her work as a home attendant required light to medium exertion with an SVP of 3. (Tr. 59.)
The VE opined that he could not match her work as a phone operator to an exact entry in the
DOT. (Tr. 59.)
The ALJ posed three hypotheticals to the VE. (See Tr. 60-61.) He first asked about an
individual who was under the age of 50; with a twelfth grade education, who could lift and carry
twenty (20) pounds occasionally and ten (10) pounds frequently; stand and walk for a total of six
hours in an eight hour block of time; sit for a total of six hours in an eight hour block of time; but
would need to change position for a minute or two every hour; occasionally balance, stoop,
kneel, crouch, crawl, and climb “lamp [sic], ramps and stairs,” but not ladders, ropes, and
scaffolds; and perform simple, routine tasks. (Tr. 59.) The VE opined that such an individual
would be able to perform the jobs of a “sorter,” “racker,” or “grinder,” all of which are classified
as light exertional level jobs with an SVP of 2. (Tr. 62.)

1

An SVP of 1-2 reflects unskilled work, an SVP of 3-4 reflects semi-skilled work, and an SVP of 5-9 reflects skilled
work. SSR 00-4p, 2000 WL 1898704, at *3 (S.S.A. Dec. 4, 2000).

5 

The ALJ next asked about an individual with the same restrictions and abilities of the
first hypothetical, in addition to occasional handling and fingering abilities in both hands. (Tr.
61, 62.) The ALJ opined that such an individual could be employed as a “linen grader” or “press
operator.” (Tr. 63.)
Finally, the ALJ asked about an individual with the same restrictions and abilities as in
the first hypothetical, with the added capability to perform tasks that can be performed
independently, primarily working with things rather than people; involving only occasional,
superficial interaction with supervisors and co-workers; and no direct interaction with the general
public. (Tr. 61.) The VE opined that this individual could also be employed as a “linen grader”
or “press operator.” (Tr. 64.)
The VE stated that these occupations customarily permit thirty (30) minutes of breaks
each day, thirty (30) to sixty (60) minutes for lunch, and twelve (12) absences from work each
year. (Tr. 65.) Further, an individual can be off task for approximately ten percent (10%) of
their work day and still perform these occupations. (Tr. 65.) The VE also noted that these
hypothetical individuals could not perform these jobs if they needed to elevate their feet or legs
into a horizontal position. (Tr. 65.)
The VE indicated that the jobs identified did not provide the option to choose between
sitting and standing at will throughout the day. (Tr. 66.) Additionally, if the hypothetical
claimant was limited to occasional fine fingering, feeling and only occasional grasping and
handling with both hands, the named positions would not be available. (Tr. 66.) However, the
VE indicated, with regard to the ALJ’s first hypothetical, the positions of “electronic assembler”
and “table worker” would be available to a claimant requiring the option of sitting and standing

6 

at will. (Tr. 67.) Both of these positions are sedentary exertional level jobs, and a “table
worker” requires an SVP of 2. (Tr. 67.)
B.

Medical Records
On May 24, 2005, McMillan received treatment in the Barnes Jewish Hospital emergency

room complaining of back pain. (Tr. 373.) After x-ray examination, she was diagnosed with a
backache and back strain. (Tr. 374.) The treating physician gave her a note permitting her to
miss work for four (4) days. (Tr. 374.)
On June 14, 2005, McMillan went to the Barnes Jewish Hospital complaining of lower
back pain. (Tr. 393.) An x-ray of her back indicated mild levoscoliosis2 of the lower lumber
spine. (Tr. 398.)
On August 16, 2005, McMillan received a chest radiograph at Barnes Jewish Hospital
showing a mildly enlarged heart, mild pulmonary vascular redistribution, and a prominent
azygos vein3 shadow4. (Tr. 397.) The attending radiologist, Dennis Balfe, M.D., concluded that
these symptoms are indicative of venous congestion that is normal in the context of pregnancy.
(Tr. 397.)
On January 1, 2006, McMillan was seen at Barnes Jewish Hospital for lower back pain.
(Tr. 388.) She complained of significant pain in the lower back and bottom of her feet. (Tr.
388.) The examining physician, Dr. Demeatzis, opined that her “pain [was] likely…although not
detected on imaging.”

(Tr. 388.)

Dr. Demeatzis diagnosed McMillan with carpal tunnel

2

An abnormal lateral and rotational curvature of the left vertebral column. Stedman’s Medical Dictionary 994, 1606
(27th ed. 2000).
3
Vein arising from the merger of the right ascending lumbar vein and the right subcostal vein which ascends along
the right side of the thoracic vertebral bodies in the posterior mediastinum and terminates by arching anteriorly over
the root of the right lung to enter the posterior aspect of the superior vena cava. Stedman’s Medical Dictionary 1937
(27th ed. 2000).
4
A surface area defined by the interception of x-rays by a body. Stedman’s Medical Dictionary 1626 (27th ed.
2000).

7 

syndrome and recommended nocturnal wrist splints. (Tr. 388.) She further recommended that
McMillan lose weight, referring her to a nutritionist and the “Fit for Life” program. The doctor
also recommended she stop smoking, referring her to the “Freedom from Smoking” program.
(Tr. 388.)
Between August 3, 2006 and November 12, 2008, McMillan received three separate
psychiatric assessments at the Barnes Jewish Behavioral Health Center. (Tr. 419-431.) On
August 3, 2006, she was examined by Ottavio Vitolo, M.D. (“Dr. Vitolo”). (Tr. 427-431.) Dr.
Vitolo found her affective symptoms to be consistent with major depressive disorder. (Tr. 429.)
However, he did not find any evidence of any history of manic symptoms that would justify a
diagnosis of Bipolar Disorder. (Tr. 429.) He also opined that McMillan did not appear to be
using illegal drugs at that time, and he did not find her ticks to meet the criteria for Tourette’s
syndrome. (Tr. 429-430.) Dr. Vitolo recommended, and McMillan agreed, that she should
continue with her current medication.

(Tr. 430.)

She was referred to a neurologist and

encouraged to continue working. (Tr. 430.)
On October 10, 2007, McMillan was examined by Mina Charepoo, M.D. (“Dr.
Charepoo”).

(Tr. 423-426.)

Dr. Charepoo also concluded that McMillan had affective

symptoms consistent with major depressive disorder. (Tr. 425.) Despite a history of mood
lability and impulsivity, Dr. Charepoo found no evidence of mania that would justify a diagnosis
of bipolar disorder. (Tr. 425.) Dr. Charepoo also believed McMillan’s drug use had been
inactive for sixteen years and found McMillan appropriate for outpatient care. (Tr. 425.) Dr.
Charepoo continued McMillan on Celexa. (Tr. 426.) The doctor also set an appointment for her
to receive counseling. (Tr. 426.)

8 

On November 12, 2008, McMillan was again examined at the Barnes Jewish Behavioral
Health Center by Dr. Megan Shabbing. (Tr. 419-421, 439-440.) This assessment indicates that
McMillan switched from Celexa to a combination of Cymbalta and Abilify.

(Tr. 420.)

McMillan acknowledged that she has “done better” on this combination of medications, such that
she only has a “low mood” a few days per month, as opposed to a few weeks per month. (Tr.
420.) McMillan denied poor psychotic symptoms, claimed that she had been enjoying work, and
was even thinking about going back to school. (Tr. 420.) During these sessions, no psychiatrist
diagnosed McMillan as manic or bipolar. (See Tr. 419-431.) She did not appear suicidal and
appeared to have her drug dependency issues under control, despite a history of suicidal behavior
and drug dependence. (Tr. 427, 429.) Further, each psychiatrist concluded, and McMillan agreed,
that her medication helped moderate her depression, and it was recommended that McMillan
continue with that course of treatment. (Tr. 420, 426, 430.)
On October 30, 2006, Jay Piccirillo, M.D. (“Dr. Piccirillo”) was asked by Beth Ward,
M.D. (“Dr. Ward”) to render an opinion as to whether McMillan would benefit from ENT
surgery. (Tr. 341.) Dr. Piccirillo’s opinion was that McMillan had severe obstructive sleep
apnea. (Tr. 341.) Because of McMillan’s weight, the severity of her apnea, and his finding that
her entire airway collapsed during the Mueller maneuver5, Dr. Piccirillo did not believe
pharyngeal surgery would be successful. (Tr. 341.) He requested McMillan seek follow-up with
Dr. Ward for further medical treatment. (Tr. 341.)
On April 17, 2007, McMillan sought treatment at the Barnes Jewish Hospital emergency
room complaining of urinary frequency. (Tr. 349.) As a result of this visit, McMillan’s blood

5

After a forced expiration, an attempt at inspiration is made with closed mouth and nose or closed glottis, whereby
the negative pressure in the chest and lungs is made very subatmospheric. Stedman’s Medical Dictionary 1061 (27th
ed. 2000).

9 

sugar was found to be high enough such that she was treated for hyperglycemia. (Tr. 352, 354.)
Subsequently, between April 23, 2007 and May 7, 2007, McMillan was treated at Barnes Jewish
Hospital for diabetes mellitus II and hyperlipidemia. (Tr. 382, 386.) McMillan admitted to
being non-compliant with previously recommended dietary restrictions, but agreed to meet again
with a diabetes educator. (Tr. 382.) McMillan also reported intermittent burning in her left foot
and was told to follow up with a foot clinic. (Tr. 382.)
On August 17, 2007 and June 2, 2009, McMillan’s mental functional capacity was
assessed by different state psychiatric consultants. (See 405, 461.) The most recent evaluation
was conducted by Dr. Robert Cottone (“Dr. Cottone”). Dr. Cottone relied upon the notes of
McMillan’s psychiatrists in forming his opinion, including the November 2008 opinion of Dr.
Megan Shabbing, and another medical opinion dated April 29, 2009. (Tr. 471.) These opinions
indicated major depressive disorder, moderate impairment in daily living activities, moderate
impairment of concentration, persistence, or pace, and mild social functioning limitations. (Tr.
471.) After reviewing McMillan’s file, Dr. Cottone concluded that McMillan was markedly
limited in her ability to understand, remember, and carryout detailed instructions. (Tr. 472.)
Additionally, she was moderately limited in her ability to concentrate for extended periods, avoid
interruptions, perform at a consistent pace without unreasonable rest, accept instructions, and
respond appropriately to criticism. (Tr. 472-473.) Dr. Cottone concluded under the “B” criteria
for functional limitation, that as a result of her mental disorders, McMillan had moderate
restrictions to daily living activities; mild difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence, and pace; and no repeated episodes of
decompensation, each of extended duration. (Tr. 469.) Pursuant to these findings, Dr. Cottone
concluded that McMillan had the functional capacity to understand, remember, carry out, and
10 

persist at simple tasks; make simple work-related judgments; relate adequately to co-workers or
supervisors; and adjust adequately to ordinary changes in work routine or setting. (Tr. 474.)
On July 18, 2007 and October 2, 2007, McMillan visited Barnes Jewish Hospital for a
check up on her blood sugar. (Tr. 614, 619.) She also complained of shortness-of-breath, chest
pain, and numbness in her legs. (Tr. 614, 619.) She was advised of the dangers of smoking, but
indicated that she was not interested in quitting. (Tr. 614, 619.) While her medication had been
working earlier, she reported increased episodes of hypoglycemia in October. (Tr. 615.) She
was again advised to follow-up with a diabetic foot clinic. (Tr. 616, 621.)
On August 7, 2008, McMillan returned to Barnes Jewish Hospital for evaluation of her
weight gain that occurred after she changed antidepressants. (Tr. 607.) However, McMillan also
admitted that she had stopped consistently checking her blood glucose levels and stopped taking
one of her medications. (Tr. 607.) She was advised to follow-up with a dietician, diabetic
educator, and a diabetic foot clinic. (Tr. 608-609.) McMillan followed-up on this appointment
on September 10, 2008 and indicated that in limiting her sugar intake, her blood glucose was
under control and routinely within her goal range. (Tr. 594-595.) At this time, McMillan had
still not sought treatment at the diabetic foot clinic. (Tr. 595.)
On February 14, 2010, McMillan went to the emergency room at Barnes Jewish Hospital
complaining of high blood sugar and swelling in her feet and ankles. (Tr. 515.) She was treated
for hyperglycemia and non-pitting edema. (Tr. 521.) McMillan asked for a work note because
she said she could not work while swollen. (Tr. 521.) She was advised to quit smoking and
follow-up with her primary care physician. (Tr. 521, 531.)
On June 11, 2010, McMillan scheduled a follow-up with Barnes Jewish Behavioral
Health Center where she indicated that she stopped working in May because of her worsening
11 

neuropathy. (Tr. 638.) She had issues with swelling in her feet and ankles and was stressed at
home because of her son and boyfriend. (Tr. 638.) The physician noted that her concentration
was good, she was free of psychosis, and had positive goals for the future. (Tr. 638.)
Between April 1, 2010 and May 12, 2010, McMillan went to Barnes Jewish Hospital
with concerns over her diabetes, ankle swelling, elbow pain, and neuropathy. (Tr. 488, 496,
503.) McMillan indicated that the treatment she received for swelling had been effective, so the
physician continued to prescribe the same medication. (Tr. 490, 506.) Additionally, she was
referred to a diabetes educator and prescribed medication for her neuropathy. (Tr. 490.)
IV.

STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities … .” Id. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001).
12 

Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
Part 404, Subpart P, Appendix 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. Id.
Fourth, the impairment must prevent claimant from doing past relevant work.6 20 C.F.R.
§§ 416.920(e), 404.1520(e). At this step, the burden rests with the claimant to establish his or
her Residual Functional Capacity (“RFC”). Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir.
2008). See also Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737
(8th Cir. 2004). RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a), and includes an assessment of physical abilities and mental impairments.
20 C.F.R. § 404.1545(b)-(e). The ALJ will review a claimant’s RFC and the physical and mental
demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f). If it is found
that the claimant can still perform past relevant work, the claimant will not be found to be
disabled. Id.; 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot perform past relevant work,
the analysis proceeds to Step V.
At the fifth and last step, the ALJ considers the claimant’s RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work.

20 C.F.R.

§ 416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id. See also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to “prove, first that the claimant retains the RFC to perform

6

“Past relevant work is work that [the claimant] has done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for [the claimant] to learn how to do it.” Mueller v. Astrue, 561 F.3d 837, 841
(8th Cir. 2009) (citing 20 C.F.R. § 404.1560(b)(1)).

13 

other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform.” Goff, 421 F.3d at 790; Nevland v. Apfel, 204 F.3d
853, 857 (8th Cir. 2000). The Commissioner must prove this by substantial evidence. Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
If the claimant satisfies all of the criteria of the five-step sequential evaluation process,
the ALJ will find the claimant to be disabled. “The ultimate burden of persuasion to prove
disability, however, remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926,
931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by “substantial evidence” in the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th
Cir. 1994). “Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.”

Krogmeier v.

Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). Therefore, even if a court finds that there is a preponderance of the evidence against
the ALJ’s decision, the ALJ’s decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). In Bland v. Bowen, 861 F.2d 533,
535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
As such, “[the reviewing court] may not reverse merely because substantial evidence exists for
the opposite decision.” Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (quoting Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Similarly, the ALJ decision may not be reversed
14 

because the reviewing court would have decided the case differently. Krogmeier, 294 F.3d at
1022.
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617; Guillams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart,
363 F.3d 731, 736 (8th Cir. 2004) (citing Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
The factual findings of the ALJ are conclusive if supported by substantial evidence. See 42
U.S.C. § 405(g). The district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.

15 

Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989). Additionally, an ALJ’s decision must comply
“with the relevant legal requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
V.

DISCUSSION

McMillan makes several arguments on appeal. She alleges that the ALJ erred by failing
to consider her obesity in making his RFC determination, discrediting her testimony, giving
substantial weight to Dr. Cottone’s opinion, and finally that the decision was conclusory.
Because the ALJ’s decision was supported by substantial evidence, the decision will be affirmed.
A.

The ALJ’s Failure to Discuss Obesity in the Opinion.
McMillan alleges that the ALJ erred in failing to discuss her obesity when determining

her RFC. McMillan is correct that even though obesity is not a listed impairment, the ALJ must
consider her functional limitations as a result of obesity when making a RFC determination. See
SSR 02-1p. However, while “required to develop the record fully and fairly, an ALJ is not
required to discuss every piece of evidence submitted.” Wildman v. Astrue, 596 F.3d 959, 966
(quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). “Moreover, an ALJ’s failure to cite
specific evidence does not indicate that such evidence was not considered.” Id. (highly unlikely
that ALJ did not consider and reject physician’s opinion when ALJ made specific references to
other findings set forth in physician’s notes).
While the ALJ may have failed to extensively discuss obesity with regard to McMillan’s
RFC, it is clear that he considered its effects. The ALJ found obesity to be one of McMillan’s
“severe impairments.” (Tr. 18.) “As with any other medical condition…obesity is a severe
impairment when, alone or in combination with another medically determinable physical or
mental impairment(s), it significantly limits an individual's physical or mental ability to do basic
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work activities.” SSR 02-1p. (internal quotations omitted) Also considered are “the effects of
any symptoms (such as pain or fatigue) that could limit functioning.” SSR 02-1p. (See also SSR
85-28, “Titles II and XVI: Medical Impairments That Are Not Severe” and SSR 96-3p, “Titles II
and XVI: Considering Allegations of Pain and Other Symptoms In Determining Whether a
Medically Determinable Impairment Is Severe.”) An individualized assessment of the impact of
obesity on an individual's functioning is required to decide whether the impairment is severe.
SSR 02-1p.
Therefore, in concluding that McMillan’s obesity was “severe,” the ALJ must not only
have considered McMillan’s obesity in making his determination, but found it sufficiently
limiting to her functional capacity that he would classify it as severe. (See Tr. 18.) Because it is
“severe,” the ALJ agreed with McMillan that her obesity “significantly limits… [her] ability to
do basic work activities.” See SSR 02-1p. The ALJ, therefore, not only considered McMillan’s
obesity, but expressly stated that it affected his RFC determination. He concluded, nonetheless,
that even with these limitations, “[t]he overall record shows [McMillan] is capable of [a] range
of light, unskilled work.” (Tr. 21.) Therefore, because the ALJ considered McMillan’s obesity,
he did not err in failing to discuss it further.
B.

The ALJ’s Evaluation of McMillan’s Credibility.
McMillan next alleges that the ALJ failed to properly consider her subjective complaints.

A claimant's subjective complaints may not be disregarded solely because the objective medical
evidence does not fully support them. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The absence of objective medical evidence is just one factor to be considered in evaluating the
claimant’s credibility and complaints. Id. The ALJ must fully consider all of the evidence
presented relating to subjective complaints, including the claimant's prior work record, and
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observations by third parties and treating and examining physicians relating to such matters as:
(1) the claimant’s daily activities; (2) the subjective evidence of the duration, frequency, and
intensity of the claimant’s pain; (3) any precipitating or aggravating factors; (4) the dosage,
effectiveness, and side effects of any medication; and (5) the claimant’s functional restrictions.
Id.
The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the claimant’s complaints. Guilliams v. Barnhart, 393 F.3d
798, 802 (8th Cir. 2005); Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004). “It is not
enough that the record contains inconsistencies; the ALJ must specifically demonstrate that he
considered all of the evidence.” Id. The ALJ, however, “need not explicitly discuss each
Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See also Steed,
524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ need only
acknowledge and consider those factors. Id. Although credibility determinations are primarily
for the ALJ and not the court, the ALJ’s credibility assessment must be based on substantial
evidence. Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780 F.2d
1371, 1374 (8th Cir. 1985). “Substantial evidence is less than a preponderance but is enough that
a reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
Here, the ALJ determined that McMillan’s “statements concerning the intensity,
persistence, and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above [RFC] assessment.” (Tr. 21.) In support of this, he opined that the
medical evidence indicated that her impairments were not as limiting as she alleged and many
had been effectively treated. (Tr. 21.)
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For example, McMillan has “obstructive sleep apnea, but the medical records indicate
that it is effectively treated with a CPAP machine. (Tr. 343.) She has bilateral carpal tunnel
syndrome and was given nocturnal wrist splints, but she has not required surgery. (Tr. 388.) She
is obese and has worked to lose weight through diet and increased control of her diabetes. (Tr.
595.) McMillan, however, admitted to being non-compliant with previously recommended
dietary restrictions and clinical follow-ups. (Tr. 382, 349.) She further routinely failed to followup with a foot specialist despite her physicians’ advice. (See Tr. 382, 595, 608, 616.) While not
dispositive, a failure to seek treatment may indicate the relative seriousness of a medical
problem. Page v. Astrue, 484 F.3d 1040, 1044 (8th Cir. 2007) (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
The ALJ indicated that her type II diabetes mellitus is non-insulin dependent and has
been generally controlled with medication. (See Tr. 382, 386.) The swelling in her hands and feet
was also well controlled with medication. (Tr. 488, 490, 506.) McMillan’s depression has been
effectively treated with medication, and her progress notes indicate her symptoms have been
stable. (See Tr. 417-460, 475-482, 633-636, 637-638.) Further, despite an alleged onset date in
2007, McMillan did not stop working until May or June of 2010. (Tr. 40.)
This is substantial evidence such that a reasonable mind would find it adequate to support
the ALJ’s conclusion. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
C.

Substantial Weight Given to Dr. Cottone’s Opinion.
McMillan next contends that the ALJ erred in giving substantial weight to Dr. Cottone’s

opinion. McMillan contends Dr. Cottone’s opinion is not entitled to substantial weight because
Dr. Cottone was a nonexamining physician, and his opinion was both dated and inconsistent with
the findings of the ALJ.
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While nonexamining physician’s opinions are not generally given controlling weight, the
weight given to any medical opinion is determined by several factors, including whether the
physician examined the patient, whether the physician treated the patient, the explanation given
for the physician’s diagnosis, the consistency of the physician’s opinion with the record as a
whole, the physician’s specialization in the field, and other factors which tend to support or
contradict the opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c).
“When an administrative law judge considers findings of a [nonexamining] State agency
medical or psychological consultant or other program physician, psychologist, or other medical
specialist, the administrative law judge will evaluate the findings using the relevant factors
[described above] such as the consultant’s medical specialty and expertise in the SSA’s rules, the
supporting evidence in the case record, supporting explanations the medical or psychological
consultant provides, and any other factors relevant to the weighing of the opinions.” 20 C.F.R. §§
404.1527(e)(2)(ii), 416.927(e)(2)(ii). Unless a treating source’s opinion is given controlling
weight, the administrative law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, as the administrative law judge must do for any
opinions from treating sources, nontreating sources, and other nonexamining sources who do not
work for [the state.] 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii).
State agency medical and psychological consultants and other program physicians,
psychologists, and other medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security disability evaluation. 20 C.F.R.
§§ 404.1527(e)(2)(i), 416.927(e)(2)(i). Because the ALJ did not give controlling weight to
another physician, it is appropriate for him to identify the amount of weight given to the opinion
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of Dr. Cottone. Dr. Cottone’s opinion is consistent with the record as a whole, as well as other
psychological evaluations. Further, McMillan does not proffer any recent psychiatric evaluation
that contradicts the findings of Dr. Cottone, and no examining psychiatrist found marked
disability in McMillan.
Because of Dr. Cottone’s credentials as a state agency psychological consultant, and his
evaluation which is consistent with substantial evidence in the record as a whole, it is not error
for the ALJ to give his opinion substantial weight.
D.

Conclusory Nature of the Decision and Reference to Supporting Evidence as
Required by SSR 96-8p.
McMillan finally contends that the ALJ did not base his decision on, nor reference,

relevant medical evidence when determining her RFC. This contention is not supported by the
record.
The ALJ specifically referenced medical treatment received by McMillan, which lead
him to conclude she had several severe impairments. (Tr. 18.) He specifically references the
treatment records considered in making his determination, as discussed previously. (See Tr. 1819) After reviewing the records and McMillan’s testimony, the ALJ agreed that McMillan’s
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms.” (Tr. 21.) Therefore, she does not fail this assessment because she does not suffer
from medically determinable impairments, but rather, she fails because she can perform light
work despite these impairments.
McMillan contends that the ALJ concluded she could perform light work without any
explanation as to how he reached this conclusion.

The ALJ indicates that he made this

determination from McMillan’s testimony as to her limitations as well as the relevant medical
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evidence. (Tr. 20-21.)

He expressly identified her limitations and concluded that these

limitations do not prevent her from performing the full range of light work as defined in 20 CFR
§§ 404.1567(b) and 416.967(b). (Tr. 20-21.) As discussed previously, this decision is supported
by substantial evidence.
She also claims that it was error for the ALJ not to use a state agency medical consultant
in ruling on her physical limitations. McMillan has not proffered any evidence, nor does this
Court find any reason, that this is required. The ALJ’s determination must simply be supported
by substantial evidence. As discussed in the previous sections of this opinion, substantial
evidence supports the ALJ’s decision. Because McMillan has the RFC to perform light activities,
the Medical Vocational Guidelines direct a finding of “not disabled.”
VI.

CONCLUSION

For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports Commissioner’s decision that Claimant is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by Claimant in her Complaint and
Brief in Support of Complaint is DENIED. [Doc. 1, 16]
A separate Judgment will accompany this Memorandum and Order.

Dated this 28th day of March, 2013.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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