Nash v. Astrue

Filing 20

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed and plaintiff's Complaint is dismissed with prejudice. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 9/23/13. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LARRY ALAN NASH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:12CV1454 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse decision by the Social Security Administration.

All

matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Procedural History

On August 19, 2010, plaintiff Larry Alan Nash filed an
application for Disability Insurance Benefits pursuant to Title II
of the Social Security Act, 42 U.S.C. §§ 401, et seq., in which he
claimed he became disabled on November 24, 2008.
consideration,
plaintiff’s

the

claim

Social
for

Security

benefits.

(Tr.

On initial

Administration
57-58,

66-70.)

denied
At

plaintiff’s request, a hearing was held on July 21, 2011, before an
Administrative Law Judge (ALJ) at which plaintiff and a vocational
expert testified.

(Tr. 37-56.)

On September 2, 2011, the ALJ

entered a decision denying plaintiff’s claim for benefits, finding
plaintiff able to perform other work as it exists in significant

numbers in the national economy.

(Tr. 16-32.)

On June 25, 2012,

after review of additional evidence, the Appeals Council denied
plaintiff’s request for review of the ALJ’s decision.

(Tr. 1-5.)

The ALJ’s decision is thus the final decision of the Commissioner.
42 U.S.C. § 405(g).
In the instant appeal for judicial review, plaintiff
claims that the Commissioner’s final decision is not supported by
substantial evidence on the record as a whole.

Specifically,

plaintiff contends that the ALJ failed to consider plaintiff’s
impairments in combination.

Plaintiff also claims that the ALJ

erred in determining plaintiff’s residual functional capacity (RFC)
inasmuch as the ALJ did not consider all of the medical evidence of
record and improperly discredited plaintiff’s subjective complaints
based on his daily activities.

Finally, plaintiff contends that

the ALJ failed to meet his burden at Step 5 of the sequential
analysis to demonstrate that plaintiff can perform other work in
the national economy.

Plaintiff requests that the Commissioner’s

decision be reversed and that benefits be awarded, or that the
matter be remanded to the Commissioner for further proceedings.
Upon consideration of plaintiff’s claims and review of
the entirety of the record, the undersigned finds there to be
substantial evidence on the record as a whole to support the ALJ’s
decision.

The

Commissioner’s

affirmed.

-2-

decision

should

therefore

be

II.
A.

Testimonial Evidence Before the ALJ

Plaintiff’s Testimony
At the hearing on July 21, 2011, plaintiff testified in

response to questions posed by counsel and the ALJ.
At the time of the hearing, plaintiff was forty-seven
years of age.
weighs

324

children.

Plaintiff stands five feet, eleven inches tall and

pounds.

Plaintiff

is

Plaintiff lives alone.

divorced

and

has

no

minor

Plaintiff graduated from high

school and received no vocational or military training.

(Tr. 40-

41, 47.)
Plaintiff’s Work History Report shows that plaintiff
worked as a lineman with a telephone construction line crew from
June 1993 to January 1994, and then as a foreman with a crew from
1994 to February 1998.

From May 1998 to October 2005, plaintiff

worked at Briggs & Stratton Corporation as a machine operator.
From February 2007 to May 2007, plaintiff worked as a groundman
with electrical power construction.

From August 2007 to November

2008, plaintiff worked as an over-the-road truck driver.
154.)

(Tr.

Plaintiff testified that he left his job as a truck driver

because of his health.

Plaintiff further testified that he was

fired from this job in January 2009 while he was on medical leave.
Plaintiff testified that he received unemployment compensation
through November 2010 and applied for other employment while he was
receiving benefits, but that no one would hire him.

-3-

(Tr. 41-42,

55.)
Plaintiff testified that he learned in 2007 that he had
diabetes and that the condition currently causes neuropathy in his
feet.

Plaintiff testified that the neuropathy causes him to be

unable to stand for more than ten to fifteen minutes at a time and
that he cannot sit for long periods of time because his feet become
numb.

Plaintiff testified that he must get up to walk around every

twenty or thirty minutes to get feeling back in his feet and legs.
Plaintiff testified that he also gets dizzy spells on account of
diabetes, and that the medication he takes for the condition causes
drowsiness.

Plaintiff testified that he can never drive a truck

again because he must take insulin for his condition.

(Tr. 42-44.)

Plaintiff testified that his obesity is worsening because
of his diabetes and the continual adjustments to his medication.
Plaintiff testified that he has tried dieting and walking, but that
his neuropathy creates problems with exercise.

(Tr. 44-45.)

Plaintiff testified that he has numbness and tingling in
his hands on account of carpal tunnel syndrome he developed while
doing factory work for ten years.
condition remains undiagnosed.

Plaintiff testified that such

Plaintiff testified that he also

experiences sharp pain in his arms which sometimes radiates to his
chest and that he believes such pain is related to his diabetes.
(Tr. 45-46.)
Plaintiff testified that he also has high blood pressure

-4-

for which he takes medication.

Plaintiff testified that the

medication causes dizzy spells and headaches.

(Tr. 47-48.)

Plaintiff testified that he experiences popping and pain
in his right foot as residual effects from a broken foot.

(Tr. 48-

49.)
Plaintiff testified that he also has severe sleep apnea
and experiences many nights with no sleep.

Plaintiff testified

that he experiences daytime tiredness as well. Plaintiff testified
that the tiredness caused by sleep apnea coupled with drowsiness
caused by his medications causes him to doze during the day and
take naps.

(Tr. 49-50.)
Plaintiff testified that he suffers from depression but

takes no medication for the condition.

Plaintiff testified that

his depression makes him stay in the house for long periods of
time.

(Tr. 48.)
As to his daily activities, plaintiff testified that he

is able to do chores at home but that he takes many breaks while
doing them because he cannot stand for very long.

(Tr. 47.)

Plaintiff testified that he drives but must take breaks every half
an hour because his legs and feet become numb.
B.

(Tr. 50.)

Testimony of Vocational Expert
Charles R. Poor, a vocational expert, testified at the

hearing in response to questions posed by the ALJ and counsel.
Mr. Poor classified plaintiff’s past relevant work as a

-5-

line installer/repairer as heavy and skilled; as a machine operator
as medium and skilled; and as a truck driver as medium and semiskilled.

(Tr. 51.)
The ALJ asked Mr. Poor to assume a person of plaintiff’s

age, education and past work experience and to further assume that
he has to alternate between the sitting and
standing at will.
Lift weights up to 20
pounds, 10 pounds frequently. No heights or
climbing. No moving or dangerous equipment.
No foot controls. He must work indoors in a
clean
air
environment.
And
from
the
psychological side he can understand, remember
and carry out, and ability to make judgments
on simple work-related decisions is none ––
ability there.
Understand and remember
complex, carry out complex and make judgment
on complex, I would put as moderate. Interact
appropriately with the public, none. Interact
appropriately
with
supervisors,
none.
Interact appropriately with coworkers, none.
And –– appropriate to usual work situations,
to changes in a routine work setting I would
just put mild.
(Tr. 51-52.)
Mr. Poor testified that such a person could not perform any of
plaintiff’s past relevant work but could perform other work in the
national economy such as security guard, of which 8,000 such jobs
exist in the regional area and 500,000 nationally; hand packager,
of

which

4,000

such

jobs

exist

in

the

region

and

255,000

nationally; and cashier, of which 38,000 such jobs exist in the
region

and

1.7

million

nationally.

(Tr.

52-53.)

Mr.

Poor

testified that a person who had to lie down more than two hours
-6-

during a work day due to sleep apnea and medication side effects
could not be a competitive worker in any job.

(Tr. 54.)

In response to questions posed by counsel, Mr. Poor
testified that a person who could work only a four-hour day, or
whose concentration and attention interfered frequently with the
performance of a job, could not perform any of the jobs to which he
previously testified.
III.

(Tr. 54-55.)

Medical Evidence Before the ALJ

From 1989 to 1997, plaintiff received treatment from
Associated Chiropractic Physicians for back pain and neck pain.
(Tr. 190-96.) During this period, plaintiff received treatment for
chondromalacia and medial meniscal injury to his right knee.

(Tr.

439-42.)
In July 1999, plaintiff visited Rolla Family Clinic with
complaints of a two-year history of low back pain.
noted to be obese.

Plaintiff was

Physical examination showed tenderness along

the left SI area, with normal range of motion.

Exercises were

prescribed and plaintiff was advised to lose weight. Trilisate and
Vicodin were prescribed.

(Tr. 331.)

Plaintiff returned to Rolla Family Clinic on August 15,
2002, with reports of continued low back pain.

Plaintiff was

referred to physical therapy, and Naprosyn was prescribed.
330.)

(Tr.

Plaintiff visited Sport Rehab on August 19, 2002, who noted

plaintiff to be obese and to have excessive lumbar lordosis,

-7-

anterior tilted pelvis, and increased thoracic kyphesis.

Therapy

sessions were scheduled to correct plaintiff’s muscular imbalances.
Upon plaintiff’s discharge from therapy on September 23, 2002, it
was noted that plaintiff had minimal pain with prolonged activity
and was more flexible.

(Tr. 197-211).

On April 18, 2006, plaintiff visited Dr. Bonnie Ranney at
St. John’s Clinic with complaints of pain in his right foot.

It

was noted that plaintiff was continuing to gain weight. Dr. Ranney
opined

that

plaintiff

may

have

some

issues

with

depression.

Plaintiff was referred to podiatry, and Meridia was prescribed for
weight loss.

An x-ray of the right foot taken that same date

showed plantar calcaneal spur.

(Tr. 316, 317.)

Plaintiff visited St. John’s Clinic on April 26, 2006,
with complaints of increasing pain in his right foot with walking
or standing, causing severe limits in his activities.
also reported severe arthritis in his hands.
of obesity was noted.

(Tr. 218, 299.)

Plaintiff

Plaintiff’s history

Dr. Mark A. Schumaker noted

the significant amount of pain exhibited by plaintiff to appear out
of proportion with clinical examination.

(Tr. 218-19.)

An MRI of

the right foot taken April 27, 2006, showed stress fracture of the
fourth metatarsal and degenerative change of the second through
fifth tarsometatarsal joints.

(Tr. 222-23, 303.)

Plaintiff

continued to complain of pain in his right foot on May 1, 2006, and
made no other complaints. Dr. Schumaker recommended that plaintiff

-8-

stay off of his right foot, but plaintiff reported that he could
not do so because of his work.

Plaintiff was diagnosed with stress

fracture of the fourth metatarsal and severe degenerative arthritis
of the Lisfranc joint.

(Tr. 217, 298.)

Plaintiff reported to Dr. Schumaker on June 7, 2006, that
he could not continue with his current work because of the pain in
his right foot.

Dr. Schumaker noted there to be no difference in

examination between plaintiff’s right and left foot.
the

right

foot

showed

no

current

or

new

An x-ray of

fracture

and

was

essentially normal. Dr. Schumaker determined to place plaintiff in
a cast and instructed plaintiff to stay off of the foot.
was provided crutches and was prescribed Demerol.

Plaintiff

(Tr. 216, 221.)

Plaintiff returned to Dr. Schumaker on June 14, 2006, and
reported that he could not stay off of his feet and that his cast
was broken, worn and falling apart.

Plaintiff was provided a new

CAM walker and was instructed to stay off of his right foot.
Plaintiff

was

prescribed.

informed

that

pain

medication

would

not

be

(Tr. 215.)

On June 23, 2006, plaintiff was diagnosed with moderate
obstructed sleep apnea after having participated in a sleep study.
A repeat sleep study was recommended.

(Tr. 245-46.)

On July 12, 2006, plaintiff reported to Dr. Schumaker
that he was doing well.
plaintiff to return to work.

Dr. Schumaker determined to release
Plaintiff inquired about disability.

-9-

Plaintiff was advised that he would have long term pain associated
with this injury.

(Tr. 214.)

Plaintiff returned to Dr. Schumaker on August 14, 2006,
and complained of sharp, stabbing pain in his right foot causing
difficulty at work and at home.

An x-ray showed no obvious

fracture or dislocation and was essentially normal.

Plaintiff

requested a CAM walker but Dr. Schumaker opined that such would not
help plaintiff’s condition.

Plaintiff also requested an extended

period off of work, but Dr. Schumaker stated that there was no
physical reason other than pain to stay off of work.
referred to his company physician.

Plaintiff was

(Tr. 213, 220.)

Plaintiff visited Dr. James A. Felts at St. John’s Clinic
on August 16, 2006, and expressed concern about returning to work
with his foot condition inasmuch as his job required him to stand
on his feet all day.
Schumaker

and

rehabilitation.

to

Plaintiff was instructed to continue with Dr.
consider

participating

in

vocational

(Tr. 314.)

Plaintiff visited Dr. Ranney on September 19, 2006,
complaining of continued problems with his right foot.

Plaintiff

also reported having arthritis in his hands and joint pains in his
knees. Laboratory tests were ordered and medication for high blood
pressure was prescribed.

(Tr. 313.)

Plaintiff was admitted to the emergency room at St.
John’s Mercy Medical Center on January 26, 2007, having been

- 10 -

advised during a routine check up that he had elevated blood sugar
levels.

Plaintiff was noted to be five feet, ten inches tall and

to weigh 325 pounds. Plaintiff’s past medical history was noted to
include

obesity,

cholesterol.
Lisinopril.

It

sleep

apnea,

blood

noted

was

high

pressure,

that

plaintiff

and

high

currently

took

Plaintiff was diagnosed with new onset diabetes, and

insulin was administered.

Plaintiff was discharged that same date

with instructions as to diet and diabetes.

Plaintiff’s discharge

medications included Glucotrol and Glucophage.

(Tr. 228-40.)

As a result of a sleep study conducted January 29, 2007,
it was recommended that plaintiff undergo a trial use of a CPAP
machine

for

moderate

obstructed

sleep

recommended that plaintiff lose weight.

apnea.

It

was

also

(Tr. 243-44.)

Plaintiff visited Dr. Kathryn D. Sievers at St. John’s
Clinic on April 13, 2007, and complained of pain in his legs and
occasional numbness in his feet.

It was noted that plaintiff was

taking Vicodin for the pain. Plaintiff reported that he was taking
his medication for his diabetes condition regularly and that his
blood sugars were fairly well normalized.
plaintiff to have lost some weight.

Dr. Sievers noted

Plaintiff was instructed to

continue with his diabetes medications, and his prescription for
Vicodin was refilled. Nerve conduction studies were ordered. (Tr.
310.)

Blood tests from that same date showed plaintiff’s diabetes

to be controlled.

(Tr. 353-55.)

- 11 -

On May 17, 2007, plaintiff reported that he no longer had
excessive daytime sleepiness with use of the CPAP machine.

(Tr.

256.)
Plaintiff

visited

complaining of leg pain.

Dr.

Sievers

on

June

1,

2007,

Dr. Sievers noted a nerve conduction

study to show sensory polyneuropathy bilaterally.

Dr. Sievers

opined that such condition was most likely related to diabetes. It
was noted that plaintiff had recently been terminated from his job.
Plaintiff was noted to be distraught in that he could not stand for
long periods due to pain and therefore could not perform factory
work.

Plaintiff also reported that he could no longer engage in

heavy

lifting.

Plaintiff

reported

that

he

was

considering

returning to school to train for another career or to apply for
disability.

Plaintiff was diagnosed with diabetes mellitus with

bilateral lower extremity neuropathy.

(Tr. 307, 308.)

Plaintiff visited Dr. Ranney on April 4, 2008, who noted
plaintiff’s

leg

pains

to

have

improved.

It

was

plaintiff had gained weight during the past year.
medications
Lisinopril,

were

noted

to

Gemfibrozil,

and

medications were adjusted.

include
an

alpha

Glucophage,
blocker.

noted

that

Plaintiff’s
Glucotrol,
Plaintiff’s

(Tr. 376.)

Plaintiff visited St. John’s Clinic on December 8, 2008,
for follow up of a recent emergency room visit for pneumonia.

It

was noted that plaintiff became ill while on the road working as an

- 12 -

over-the-road
diagnosed

truck

with

driver.

dyspnea,

Upon

chest

mellitus without complication.

examination,

pain,

plaintiff

pneumonia,

(Tr. 366-67.)

and

was

diabetes

Plaintiff returned

for follow up on December 15, 2008, and complained of shortness of
breath, fatigue, cough, and dizziness.

Plaintiff reported that he

could not do anything except sit or lie down.
that he could not work.

Plaintiff was upset

Plaintiff was given an injection of

Ceftriaxone and was instructed to follow up in one week.
69.)

(Tr. 368-

Plaintiff followed up on December 22, 2008, and reported that

he felt better although he continued to experience some weakness
and shortness of breath.

A note was given for work.

(Tr. 371.)

Plaintiff returned to St. John’s Clinic on January 16,
2009, and reported that he was experiencing pain in his left heel.
It

was

noted

that

plaintiff

was

medication but not with his diet.

compliant

with

his

diabetes

Plaintiff also reported that he

was under stress in that he was going through a divorce and would
likely have to file for bankruptcy. Plaintiff’s diabetes was noted
to be poorly controlled due to intercurrent illness.
and laboratory testing was ordered.

Diagnostic

(Tr. 372-73.)

On December 8, 2009, St. John’s Clinic noted plaintiff’s
diabetes to be uncontrolled and that plaintiff was morbidly obese.
(Tr. 395.)
On December 29, 2009, plaintiff reported to St. John’s
Clinic that he was unable to afford test strips to check his blood

- 13 -

sugar levels.

It was noted that plaintiff’s diabetes was now

uncontrolled and required insulin.
refilled.

Plaintiff’s medications were

(Tr. 393.)
On January 5, 2010, improving control of plaintiff’s

diabetes was noted at St. John’s Clinic.
were adjusted.

Plaintiff’s medications

(Tr. 392.)

Plaintiff visited St. John’s Clinic on July 6, 2010,
complaining of having a diabetic episode over the weekend.

It was

noted that plaintiff had been playing drums at a concert for over
two hours outside in the heat and began experiencing dizziness and
lightheadedness. Plaintiff also reported experiencing numbness and
tingling in his feet and legs.

Examination showed plaintiff to be

obese and to have decreased sensation in the feet bilaterally.
Plaintiff was diagnosed with diabetes mellitus, type II, with
neuropathy;

hyperlipidemia;

and

hypertension.

Plaintiff’s

medications were refilled and plaintiff was instructed to follow up
in three months.

(Tr. 389.)

Laboratory testing conducted on July 8, 2010, showed
plaintiff’s diabetes to be under poor control.

(Tr. 387-88.)

On August 12, 2010, plaintiff underwent a consultative
physical examination for disability determinations.

Plaintiff

reported taking insulin for his diabetes and being unable to obtain
employment as a driver on account thereof.
plaintiff moved around easily.

- 14 -

It was noted that

Plaintiff was morbidly obese.

Plaintiff reported having diabetic peripheral neuropathy, having
constant numbness in his feet and legs.

Plaintiff also reported

having constant pain and burning in his feet.

Plaintiff reported

having pain in his back that sometimes radiated down his legs.
Plaintiff reported that chiropractic adjustment no longer provided
relief. Plaintiff reported that he could walk one half to one mile
but with shortness of breath and sore feet.

Plaintiff reported

that he could stand for fifteen minutes but had no trouble sitting.
Plaintiff reported that he could carry about fifty pounds.
John

Demorlis

noted

plaintiff’s

current

medications

to

Dr.
be

Metformin, Glyazide, Lantus, Lisinopril, Lovastatin, and Terazosin.
Physical examination was hindered due to plaintiff’s obesity.
Diminished sensation was noted about the toes.

Plaintiff could do

a full squat and could walk on his heels and toes.
reflexes and gait were noted to be normal.

Motor strength,

Range of motion was

noted to be normal, except for limited straight leg raising and
limited

hip

plaintiff

flexion

with

due

poorly

to

obesity.

controlled

Dr.

Demorlis

diagnosed

insulin-dependent

diabetes,

peripheral neuropathy, morbid obesity, hyperlipidemia, chronic back
pain, hypertension, and sleep apnea with use of CPAP.

Dr. Demorlis

concluded that plaintiff was not totally disabled but that his
peripheral neuropathy would make driving precarious given the
dubious sensations in his feet.

Dr. Demorlis recommended that

plaintiff see an endocrinologist for his diabetes.

- 15 -

(Tr. 409-13,

414-15.)
On September 2, 2010, plaintiff underwent a psychological
evaluation

to

assist

in

determining

Medicaid

eligibility.

Plaintiff’s primary complaint was that he had a lot of medical
problems and no job with health insurance.

Dr. Thomas Spencer

noted plaintiff’s diabetes, hypertension and high cholesterol to be
poorly controlled.

Plaintiff reported that he was sent to a

psychologist because he told a caseworker that he was depressed and
almost

suicidal.

Plaintiff

reported

that

he

could

employment and could not get his health under control.

not

find

Plaintiff

reported being depressed for years but never obtaining treatment.
Plaintiff reported feeling hopeless and helpless but that he did
not have current or recent suicidal thoughts.

Plaintiff reported

having poor sleep and feeling fatigued during the day.

Plaintiff

reported that he lacked motivation and procrastinates.

Plaintiff

reported that he gets out of bed and maintains his activities of
daily living but that he often starts things without finishing.
Plaintiff reported having difficulty staying on task and focusing,
and further reported being forgetful.

Plaintiff reported having

lost interest in most of what he enjoys.

Plaintiff reported

periodic anger and that he spends part of his day sitting around
the house isolated from friends and family.

Plaintiff reported

that he lived alone and had no friends, but had regular contact
with his mother and daughters. Plaintiff reported that he attended

- 16 -

church.

Plaintiff reported that he tried to get out of the house

and exercise and that he enjoyed camping and outdoor activities.
Mental status examination showed plaintiff to have a nervous mood
and flat affect with circumstantial flow of thought and some
difficulty staying on task.
seemed fairly intact.

Plaintiff’s insight and judgment

Upon conclusion of the evaluation, Dr.

Spencer diagnosed plaintiff with adjustment disorder, depressed,
chronic; polysubstance abuse in sustained remission; rule out major
depressive disorder.
Functioning

(GAF)

Dr. Spencer assigned a Global Assessment of

score

of

50-55.1

Dr.

Spencer

opined

that

plaintiff had a mental illness, “one that appears to interfere with
his present ability to engage in employment suitable for his age,
training, experience, and/or education.”

Dr. Spencer opined that

plaintiff’s prognosis would improve with appropriate treatment and
compliance.

(Tr. 404-08.)

On October 12, 2010, Dr. Barbara Markway, a psychological
consultant with disability determinations, completed a Psychiatric
Review Technique Form in which she opined that plaintiff’s chronic
1

A GAF score considers “psychological, social, and
occupational functioning on a hypothetical continuum of mental
health/illness.” Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 41-50
indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational or school functioning (e.g.,
no friends, unable to keep a job). A GAF score of 51 to 60
indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational or school functioning (e.g., few friends,
conflicts with peers or co-workers).
- 17 -

adjustment

disorder

and

polysubstance

dependence

in

remission

caused mild restrictions in activities of daily living and mild
difficulties

in

maintaining

social

functioning;

and

moderate

difficulties in maintaining concentration, persistence or pace;
with no episodes of decompensation of an extended duration.
424-35.)

(Tr.

In a Mental RFC Assessment completed that same date, Dr.

Markway opined that, in the domain of Understanding and Memory,
plaintiff was moderately limited in his ability to understand and
remember detailed instructions, but was not otherwise significantly
limited. In the domain of Sustained Concentration and Persistence,
Dr. Markway opined that plaintiff was moderately limited in his
ability

to

carry

out

detailed

instructions

and

to

maintain

attention and concentration for extended periods, but was not
otherwise

significantly

limited.

In

the

domain

of

Social

Interaction, Dr. Markway opined that plaintiff was moderately
limited

in

his

ability

to

accept

instruction

and

respond

appropriately to criticism from supervisors, but was not otherwise
significantly limited.

Finally, in the domain of Adaptation, Dr.

Markway opined that plaintiff was not significantly limited in any
regard.

(Tr. 436-38.)
Plaintiff visited Dr. Randall Huss on December 23, 2010,

for

follow

up

on

diabetes.

It

was

noted

that

plaintiff’s

medications included Glucophage, Gemfibrozil, insulin, Neurontin,
Glucotrol, and Lisinopril.

Plaintiff’s medications were refilled

- 18 -

and referrals to ophthalmology and podiatry were made.

(Tr. 467-

69.)
On January 10, 2011, Dr. Huss completed a Physical RFC
Assessment wherein he opined that plaintiff could not use either or
both

of

his

feet

for

diabetic neuropathy.

repetitive

movements

because

of

severe

Dr. Huss further opined that plaintiff could

not be exposed to unprotected heights and could not be exposed to
marked temperature change due to diabetic neuropathy.

Dr. Huss

opined that plaintiff could frequently be around moving machinery
but

could

only

occasionally

drive

automotive

equipment

and

occasionally be exposed to dust, fumes, gases, and noise. Dr. Huss
described plaintiff’s pain as moderate and reported that prolonged
sitting and standing aggravated plaintiff’s pain. Dr. Huss further
reported that getting up and moving around helped to relieve
plaintiff’s pain.

Dr. Huss opined that plaintiff should not work

inasmuch as plaintiff’s diabetic neuropathy limited his ability to
use his feet and to tolerate pain.

(Tr. 452-55.)

In an RFC Questionnaire completed January 10, 2011, Dr.
Huss reported that plaintiff suffered from diabetes mellitus,
diabetic neuropathy and sleep apnea, and that plaintiff’s symptoms
of the conditions included fatigue, difficulty walking, episodic
vision blurriness, muscle weakness, pain and numbness in the
extremities, loss of manual dexterity, hyper/hypoglycemic attacks,
and numbness in the feet.

Dr. Huss noted the clinical findings to

- 19 -

show

loss

of

plaintiff’s

sensation

pain

would

in

the

feet.

frequently

Dr.

Huss

interfere

with

opined

that

plaintiff’s

attention and concentration during a workday. Dr. Huss opined that
plaintiff could tolerate moderate work stress.

Dr. Huss opined

that plaintiff could walk four city blocks without rest or severe
pain; could sit for thirty minutes at a time before needing to get
up; could stand for fifteen minutes before needing to sit down or
walk; could sit for two hours total and stand/walk for two hours
total in an eight-hour workday.

Dr. Huss opined that plaintiff

would need to walk every thirty minutes for five minutes at a time
during an eight-hour workday.

Dr. Huss opined that plaintiff

needed a job with a sit/stand option at will.

Dr. Huss also opined

that plaintiff would need to take unscheduled breaks every hour
during an eight-hour workday. Dr. Huss reported that plaintiff did
not need an assistive device for walking.

Dr. Huss opined that

plaintiff could occasionally lift and carry up to twenty pounds and
could frequently lift and carry less than ten pounds.

Dr. Huss

opined that plaintiff could frequently climb stairs; could rarely
twist,

stoop,

ladders.

bend,

crouch,

or

squat;

and

could

never

climb

Dr. Huss also opined that plaintiff had significant

limitations in his ability to reach, handle or finger.

Dr. Huss

opined that plaintiff should avoid moderate exposure to extreme
cold and chemicals, and should avoid concentrated exposure to
cigarette smoke, perfumes, solvents/cleaners, fumes/odors, and

- 20 -

dust.

Dr. Huss estimated that plaintiff would be absent from work

about two days per month on account of his impairments.

Dr. Huss

opined that plaintiff experienced these symptoms and limitations
since 2007.

(Tr. 456-60.)

On February 4, 2011, plaintiff visited ophthalmologist
Dr.

Todd

Theobald

and

reported

having

blurred

vision.

Upon

examination, plaintiff was diagnosed with ocular histoplasmosis–not
visually significant, and retinal vascular changes, neither of
which was related to plaintiff’s diabetes condition.

Educational

materials were given regarding eye complications of diabetes. (Tr.
461-66.)
Plaintiff visited Dr. Huss in March and June 2011 for
follow up on diabetes.

Medications were refilled and instructions

were given regarding diabetes management.
IV.

(Tr. 472-77.)

Additional Medical Evidence Before the Appeals Council
On September 22, 2011, Dr. Huss noted that plaintiff’s

blood sugar readings had been high recently and that plaintiff’s
diabetes was poorly controlled. Plaintiff admitted to a poor diet.
Insulin lispro was added to plaintiff’s medication regimen.

(Tr.

486-89.)
On November 21, 2011, plaintiff visited Dr. Huss who
noted plaintiff’s diabetes control to be dramatically better since
adding insulin lispro at mealtime.

Dr. Huss noted neuropathy to

continue to be a problem in the feet and legs.

- 21 -

Plaintiff reported

having no side effects from his medications.

Physical examination

of the extremities showed decreased sensation but normal pulses,
good

capillary

refill,

and

no

pedal

edema.

Plaintiff

was

instructed to continue with his current medications. (Tr. 490-95.)
Plaintiff returned to Dr. Huss on March 1, 2012, and
reported that he may be losing his Medicaid.

Dr. Huss noted

plaintiff’s neuropathy of the feet to limit him due to pain and
numbness, worsening with standing or walking.

Dr. Huss noted that

plaintiff could not perform his previous work as a truck driver or
in power line construction.

Dr. Huss noted plaintiff to be

compliant with his diet and medication.
unremarkable.

Physical examination was

Plaintiff was instructed to continue with his

current treatment and medications.

(Tr. 499-501.)

In a letter dated March 1, 2012, and addressed to “To
whom it may concern,” Dr. Huss wrote,
I have determined he is unable to work in any
type of gainful employment that he has done in
the past based on his diagnosis of severe
diabetic neuropathy. It has been determined
that this will continue lifelong. He has been
able to bring his diabetes under improved
control due to medical coverage from Medicaid,
but his losing medical coverage will likely
result in his inability to afford medical care
and medications.
This will result in
significantly degraded life expectancy and
quality of life for Mr. Nash.
(Tr. 483.)

- 22 -

V.

The ALJ’s Decision

The ALJ determined that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2013.
The ALJ found that plaintiff had not engaged in substantial gainful
activity

since

disability.
peripheral
disorder

November
The

ALJ

neuropathy,
to

constitute

24,

2008,

determined
sleep

the

plaintiff’s

apnea,

severe

alleged

obesity,

impairments,

onset

date

diabetes
and
but

of

with

adjustment
that

such

impairments, either singly or in combination, did not meet or
medically equal any listed impairment in 20 C.F.R, Part 404,
Subpart P, App. 1.

(Tr. 19-25.)

The ALJ determined plaintiff to

have the RFC to perform light work
except for a sit and stand option at will. He
can perform work that involves no heights or
climbing, no moving or dangerous machinery,
and no foot control. He must work indoors in
a clean air environment. He has no limitation
in his ability to understand, remember, and
carry out simple instructions and make
judgments on simple work-related decisions;
and moderate limitation in his ability to
understand, remember, and carry out complex
instructions and make judgments on complex
work-related decisions. He has no limitation
in his ability to interact appropriately with
the public, supervisors, and coworkers.
He
has mild limitation in his ability to respond
appropriately to usual work situations and
changes in routine work setting.
(Tr. 26.)
The ALJ determined that plaintiff could not perform his past

- 23 -

relevant

work.

Considering

plaintiff’s

age,

education,

work

experience, and RFC, the ALJ determined vocational expert testimony
to support a finding that plaintiff could perform other work as it
exists

in

significant

numbers

in

the

national

economy,

specifically security guard, hand packager and cashier.

and

The ALJ

thus determined that plaintiff was not under a disability since the
alleged onset date through the date of the decision.
VI.

(Tr. 27-32.)

Discussion

To be eligible for Social Security Disability Insurance
Benefits under the Social Security Act, plaintiff must prove that
he is disabled.

Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th

Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d
552,

555

(8th

Cir.

1992).

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 which has
lasted or can be expected to last for a continuous period of not
less than 12 months."
will

be

declared

42 U.S.C. § 423(d)(1)(A).

disabled

"only

if

his

An individual

physical

or

mental

impairment or impairments are of such severity that he 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. § 423(d)(2)(A).

- 24 -

To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The Commissioner begins by deciding whether the claimant is engaged
in substantial gainful activity.
disability benefits are denied.

If the claimant is working,
Next, the Commissioner decides

whether the claimant has a “severe” impairment or combination of
impairments, meaning that which significantly limits his ability to
do basic work activities.

If the claimant's impairment(s) is not

severe, then he is not disabled.
whether

claimant's

The Commissioner then determines
of

the

impairments listed in 20 C.F.R., Subpart P, Appendix 1.

If

claimant's

impairment(s)

impairment(s)

is

meets

equivalent

impairments, he is conclusively disabled.

or

to

equals

one

of

one

the

listed

At the fourth step, the

Commissioner establishes whether the claimant can perform his past
relevant work.

If so, the claimant is not disabled.

Finally, the

Commissioner evaluates various factors to determine whether the
claimant is capable of performing any other work in the economy.
If not, the claimant is declared disabled and becomes entitled to
disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

- 25 -

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson

This “substantial

evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”

Id. (internal

quotation marks and citations omitted).
To

determine

whether

the

Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

4.

The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.

5.

Any corroboration by third parties of the
plaintiff's impairments.

6.

The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).

- 26 -

The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.

Coleman, 498 F.3d at 770;

Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
Because the ALJ committed no legal error and the decision
is supported by substantial evidence on the record as a whole, the
decision of the Commissioner finding plaintiff not to be disabled
must be affirmed.
A.

Combination of Impairments
Plaintiff

claims

that

the

ALJ

erred

by

failing

to

consider plaintiff’s mental impairment to be a severe impairment
and thus failed to consider plaintiff’s impairments in combination
in determining plaintiff not to be disabled.

A reading of the

ALJ’s decision shows the plaintiff’s claim to be without merit.
As noted above, the ALJ found plaintiff’s adjustment

- 27 -

disorder to be a severe impairment.
otherwise is refuted by the record.

(Tr. 21.)

Plaintiff’s claim

To the extent plaintiff claims

that the ALJ failed to consider his impairments in combination, the
record likewise refutes this contention.
decision

shows

the

ALJ

to

have

plaintiff’s

medical

records

and

plaintiff’s

alleged

impairments,

A review of the ALJ’s

thoroughly
to

summarized

have

discussed

including

mental impairment of adjustment disorder.

all

of

each

of

plaintiff’s

severe

The ALJ expressly found

that plaintiff did “not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments[.]”

(Tr. 23.)

In addition, the ALJ

continued to refer to the combination of plaintiff’s impairments
throughout the remainder of his decision.
In view of the ALJ’s summary of the medical records and
his finding based thereon that the combination of plaintiff’s
impairments did not render him disabled, the undersigned finds that
the ALJ properly considered the combined effects of plaintiff’s
impairments,

including

plaintiff’s

mental

impairment,

plaintiff’s contention otherwise should be denied.

and

Martise v.

Astrue, 641 F.3d 909, 924 (8th Cir. 2011).
B.

RFC and Credibility Determination
Plaintiff

claims

that

the

ALJ

erred

in

his

RFC

determination by failing to consider the entirety of the record and
by

discounting

plaintiff’s

subjective

- 28 -

complaints

based

on

plaintiff’s daily activities.
When determining a claimant’s RFC, the ALJ must first
evaluate the credibility of the claimant’s subjective complaints.
Nishke v. Astrue, 878 F. Supp. 2d 958, 978 (E.D. Mo. 2012).

When

undergoing such evaluation, the ALJ must consider all evidence
relating to the complaints, including the claimant’s prior work
record and third party observations as to the claimant’s daily
activities; the duration, frequency and intensity of the symptoms;
any

precipitating

and

aggravating

factors;

the

dosage,

effectiveness and side effects of medication; and any functional
restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.

1984) (subsequent history omitted).

Although the ALJ may not

discount subjective complaints on the sole basis of personal
observation, he may disbelieve a claimant’s complaints if there are
inconsistencies in the evidence as a whole.

Id.

The “crucial

question” is not whether the claimant experiences symptoms, but
whether his credible complaints prevent him from performing work.
Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th Cir. 2003).
Where a claimant challenges an ALJ’s adverse credibility
determination, “the duty of the court is to ascertain whether the
ALJ considered all of the evidence relevant to the plaintiff’s
complaints . . . under the Polaski standards and whether the
evidence so contradicts the plaintiff’s subjective complaints that
the ALJ could discount his or her testimony as not credible.”

- 29 -

Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004).
not

enough

that

the

record

merely

contain

It is

inconsistencies.

Instead, the ALJ must specifically demonstrate in his decision that
he considered all of the evidence.

Id. at 738; see also Cline v.

Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).

Where an ALJ

explicitly considers the Polaski factors but then discredits a
claimant’s complaints for good reason, the decision should be
upheld.

Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001); see

also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).

The

determination of a claimant’s credibility is for the Commissioner,
and not the Court, to make.

Tellez v. Barnhart, 403 F.3d 953, 957

(8th Cir. 2005); Pearsall, 274 F.3d at 1218.
As an initial matter, the ALJ did not err in considering
plaintiff’s

daily

activities

in

determining

plaintiff’s

credibility, and indeed was required to do so under Polaski.

In

addition, a review of the ALJ’s decision in toto shows the ALJ to
have

considered

plaintiff’s

all

of

credibility

the

Polaski

and

to

factors

have

set

in

determining

out

numerous

inconsistencies in the record to support his conclusion that
plaintiff’s subjective complaints were not credible.
to

finding

plaintiff’s

daily

activities

of

In addition

camping

trips,

exercising, cleaning house, shopping, mowing the lawn, and visiting

- 30 -

family to be inconsistent with disabling pain,2 the ALJ also noted
that

plaintiff

received

only

conservative

treatment

for

his

impairments, which was inconsistent with a finding of disability.
See

Moore

v.

(conservative

Astrue,
treatment

572

F.3d

during

520,

period

525
of

(8th

Cir.

alleged

inconsistent with complaints of disabling pain).

2009)

disability

In addition, the

ALJ noted that plaintiff was not consistently compliant with his
medication and diet regimen, see Wildman v. Astrue, 596 F.3d 959,
968 (8th Cir. 2010) (noncompliance with doctor’s instruction as to
diet

and

medication

constitutes

a

valid

reason

to

discredit

subjective complaints); but that his diabetes was under control
when he was compliant, see Brown v. Barnhart, 390 F.3d

535, 540

(8th Cir. 2004) (impairment cannot be considered disabling if it
can be controlled by treatment or medication).

The ALJ also noted

that plaintiff did not report any adverse side effects to his
physicians, and indeed Dr. Huss’s notes show plaintiff not to
experience any side effects.

Finally, the ALJ noted that Dr.

Huss’s opinion that plaintiff suffered disabling symptoms since
2007 was inconsistent with plaintiff’s ability to work until
January 2009.
2005)

See Goff v. Barnhart, 421 F.3d 785, 792-93 (8th Cir.

(working

with

alleged

disabling

2

symptoms

diminishes

See Medhaug v. Astrue, 578 F.3d 805 (8th Cir. 2009)
(claimant’s ability to do all of his own chores and to mow lawn
inconsistent with complaints of disabling pain); Pelkey v.
Barnhart, 433 F.3d 575 (8th Cir. 2006) (daily activities of
household chores, shopping, mowing lawn, and occasionally
visiting friends inconsistent with complaints of disabling pain).
- 31 -

credibility).

These

reasons

for

discrediting

plaintiff’s

subjective complaints are supported by substantial evidence on the
record as a whole.
A review of the ALJ’s decision shows that, in a manner
consistent with and as required by Polaski, the ALJ thoroughly
considered plaintiff’s subjective complaints on the basis of the
entire record and set out numerous inconsistencies that detracted
from plaintiff’s credibility.

Because the ALJ’s determination not

to credit plaintiff’s subjective complaints is supported by good
reasons and substantial evidence, this Court must defer to the
ALJ’s credibility determination.

Goff, 421 F.3d at 793; Vester v.

Barnhart, 416 F.3d 886, 889 (8th Cir. 2005); Gulliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005).
In addition, contrary to plaintiff’s assertion, a review
of the ALJ’s decision shows him to have thoroughly summarized and
analyzed the entirety of the medical and non-medical evidence
before him, the consistency of such evidence when viewed in light
of the record as a whole, and to have assessed plaintiff’s RFC
based on such evidence in the case record.
evidence supports

Because some medical

the ALJ’s RFC determination, the ALJ’s RFC

assessment must stand.

See Steed v. Astrue, 524 F.3d 872, 876 (8th

Cir. 2008).
C.

Commissioner’s Burden at Step 5
In a cursory manner, plaintiff claims that the ALJ failed

- 32 -

to meet the Commissioner’s burden at Step 5 of the sequential
analysis by failing to demonstrate that specific jobs exist that
plaintiff could perform with an RFC that limits him to jobs that
permit him to alternate between sitting and standing and account
for his mental limitations.

A review of the record refutes this

claim.
Once a claimant carries his burden through Step 4 of the
analysis and demonstrates that he cannot perform his past relevant
work, the burden shifts to the Commissioner to demonstrate that the
claimant has the RFC to perform a significant number of jobs within
the

national

economy.

Pearsall,

274

F.3d

at

1219.

Commissioner may satisfy this burden in one of two ways:

The
1)

through use of the Medical-Vocational Guidelines if the claimant’s
impairments are exertional in nature; or 2) through the testimony
of

a

vocational

expert

if

the

claimant

has

impairments, such as pain or mental limitations.

non-exertional
Id.

Here, the ALJ satisfied the Commissioner’s burden at Step
5 by soliciting the testimony of a vocational expert.

Plaintiff

makes no specific challenge to the testimony of the vocational
expert or to the hypothetical posed by the ALJ.

Instead, plaintiff

argues in a cursory manner that the ALJ failed to demonstrate that
jobs exist for a person with plaintiff’s mental limitations and
sit/stand requirement.

A review of the ALJ’s RFC determination,

however, shows the ALJ to have included the sit/stand option and to

- 33 -

have accounted for plaintiff’s mental limitations to the extent he
found them credible and supported by substantial evidence on the
record as a whole.

Because the hypothetical question posed to the

vocational expert contained these limitations, it cannot be said
that the ALJ erred by relying on vocational expert testimony in
finding plaintiff able to perform other work in the national
Pearsall, 274 F.3d at 1220.

economy.

VI.

Conclusion

On the claims raised by plaintiff on this appeal for
judicial review, substantial evidence on the record as a whole
supports

the

ALJ’s

decision.

Therefore,

the

Commissioner’s

determination that plaintiff was not under a disability must be
affirmed.
Accordingly, for all of the foregoing reasons,
IT

IS

HEREBY

ORDERED

that

the

decision

of

the

Commissioner is affirmed and plaintiff's Complaint is dismissed
with prejudice.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE
Dated this

23rd

day of September, 2013.

- 34 -