Whitmore v. Colvin

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Nannette A. Baker on 04/24/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DORTHELIA WHITMORE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:14CV762 NAB

MEMORANDUM AND ORDER
Plaintiff Dorthelia Whitmore brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3) seeking judicial review of the Commissioner’s final
decision denying her application for supplemental security income (SSI) under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. All matters are
pending before the undersigned United States Magistrate Judge, with consent of
the parties, pursuant to 28 U.S.C. § 636(c). Because the Commissioner’s final
decision is supported by substantial evidence on the record as a whole, it is
affirmed.
I. Procedural History
Plaintiff applied for SSI on January 27, 2011, claiming disability because of
heart failure, bypass surgery, and hypertension. She alleges a disability onset date

of January 26, 2011. The Social Security Administration initially denied plaintiff’s
application on July 7, 2011. After a hearing on November 20, 2012, at which
plaintiff and a vocational expert testified, an administrative law judge (ALJ)
entered a written decision on January 18, 2013, finding plaintiff not disabled
because of her ability to perform work as it exists in significant numbers in the
national economy. On February 20, 2014, the Appeals Council denied plaintiff’s
request to review the ALJ’s adverse decision. The ALJ’s decision thus became the
final decision of the Commissioner. 42 U.S.C. § 405(g).
Plaintiff now requests this Court to review the ALJ’s decision, arguing that
the medical evidence of record establishes that she is disabled because of her heart
bypass surgery and her continuing symptoms of chest pain and shortness of breath.
Plaintiff also contends that she is limited by swelling and tightness in her hands
and feet caused by arthritis, and that she cannot stand for long periods of time
because of restless leg syndrome. Plaintiff also argues that the ALJ considered
only the objective medical evidence of record and failed to consider her subjective
complaints of disabling symptoms. Plaintiff proceeds in this cause pro se and has
filed memoranda with the Court setting out her claims. (See Pltf.’s Memos. to
Court, Doc. Nos. 17, 19.) Upon review of the record as a whole, the Court finds
the ALJ’s decision to be supported by substantial evidence. The final decision of
the Commissioner finding plaintiff not disabled is therefore affirmed.
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II. Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on November 20, 2012, plaintiff testified in response to

questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-seven years of age. Plaintiff is
married and lives in an apartment with her husband. She stands five feet, four
inches tall and weighs 185 pounds. Plaintiff went to school through the eleventh
grade. She has not earned her GED. (Tr. 26, 35.)
Plaintiff’s Work History Report shows that plaintiff worked intermittently as
a nurse’s assistant from 1997 to August 9, 2010. (Tr. 140.) Plaintiff testified that
she was certified as a nurse’s assistant in 1999. (Tr. 37.)
Plaintiff testified that she underwent heart bypass surgery in January 2011
and experienced chest pain and pneumonia thereafter. Plaintiff testified that she
cannot work because of the residual effects of her bypass surgery, including
tenderness in the chest and shortness of breath, as well as because of swelling in
her feet and hands. Plaintiff testified that she also has asthma, chronic obstructive
pulmonary disease, “a little fluid in the heart,” high cholesterol, and hypertension,
as well as rheumatoid arthritis in her right hand that causes swelling. Plaintiff has
not yet seen a doctor for her arthritis condition. Plaintiff testified that some of her
medications make her go to sleep or feel hot. (Tr. 27-30, 32-33.)
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Plaintiff testified that tenderness in her ribcage and the swelling in her feet
and ankles limit her to sitting no longer than twenty minutes, walking about thirty
minutes, and standing for fifteen minutes. Plaintiff testified that she must move
around a lot or elevate her legs while sitting because of the swelling. Plaintiff
testified that she experiences chest tightness when she tries to walk one block and
must stop five or six times to take a deep breath or use her inhaler. (Tr. 29-32.)
As to her daily activities, plaintiff testified that she gets up in the morning
and tries to make the bed with help from her husband. Plaintiff cleans the kitchen
if it needs cleaning, but she basically relaxes during the day. She reads the bible
and watches television. Her grandchildren sometimes come to visit. Plaintiff
testified that her husband helps a lot with certain things, including helping her into
and out of the tub. (Tr. 34-36.) She can no longer do laundry by herself because
she cannot lift or go up and down steps a lot. Plaintiff can stand and cook or do
dishes but must sit and rest a bit while doing so. (Tr. 29.) Plaintiff does the
majority of the cooking. Plaintiff testified that both she and her husband do the
shopping. Plaintiff has difficulty sleeping because of discomfort in her chest. She
sleeps only about three hours at night. (Tr. 34-36.)
B.

Testimony of Vocational Expert
Dr. Belchick, a vocational expert, testified at the hearing in response to

questions posed by the ALJ.
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The ALJ advised Dr. Belchick that the only work performed by plaintiff that
qualified as substantial gainful activity was that done prior to her obtaining
certification as a nurse’s assistant. Dr. Belchick characterized such work as that of
a home health aide and described it as medium and unskilled work. (Tr. 37-38.)
The ALJ asked Dr. Belchick to assume an individual forty-five years of age
with eleven years of education and past work as a home health aide. The ALJ
asked Dr. Belchick to further assume that this individual could
lift and carry 20 pounds occasionally, 10 pounds frequently; can stand
or walk for two hours out of eight and sit for six; can occasionally
climb stairs and ramps, never ropes, ladders, or scaffolds; occasionally
stoop, kneel, crouch, and crawl. She should avoid concentrated
exposure to extreme cold and heat, wetness and humidity, and
vibration. And she should avoid even moderate exposure to fumes,
odors, dusts, and gases, and all exposure to unprotected heights and
moving and dangerous machinery.
(Tr. 38.) Dr. Belchick testified that such a person could not perform plaintiff’s past
relevant work but could perform other work as a bench assembler, of which 1,700
such jobs exist in St. Louis and 60,000 nationally; and as a packager, of which
1,200 such jobs exist in St. Louis and 14,000 nationally. (Tr. 40.)
The ALJ then asked Dr. Belchick to assume the same individual but that she
required a sit/stand option in order to vary positions once every half an hour. Dr.
Belchick responded that such a person could perform work as a cashier-II, of
which 11,000 such jobs exist in St. Louis and 100,000 nationally. (Tr. 40-42.)
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III. Medical Records Before the ALJ
The medical evidence of record shows that plaintiff was treated at Christian
Hospital and Grace Hill Neighborhood Health Services/Murphy-O’Fallon Clinic
beginning in June 2010 for complaints of shortness of breath and chest pain.
Pulmonary function tests yielded fairly unremarkable findings. Dr. Bharat Shah, a
cardiologist, determined in July 2010 that plaintiff had pericardial effusion,1 and
plaintiff was treated with Lasix, potassium, prednisone, and Tramadol. Plaintiff
was also determined to have hypertension, for which medication was prescribed.
Plaintiff also received treatment for asthma.
In November 2010, plaintiff visited her primary care physician, Dr. David
Richards, at Grace Hill/Murphy-O’Fallon Clinic and reported that she was unable
to afford Dr. Shah’s care as well as some of her prescribed medications. Dr.
Richards noted plaintiff to have shortness of breath with minimal exertion as well
as difficulty breathing while lying down (orthopnea). Plaintiff also reported that
she was experiencing some swelling in her ankles and hands, but Dr. Richards’
physical examination showed no swelling. Indeed, physical examination was
normal in all respects. Dr. Richards determined plaintiff’s congestive heart failure
and hypertension to be poorly controlled, and medication was prescribed. Dr.
1

Pericardial effusion is the buildup of fluid in the pericardium, the sac that surrounds the heart.
Medline Plus (last updated Aug. 1, 2014)<http://www.nlm.nih.gov/medlineplus/
pericardialdisorders.html>.
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Richards also prescribed medication for hyperlipidemia and asthma, as well as
Tylenol for hand pain associated with swelling. Plaintiff was referred to
cardiology at ConnectCare for evaluation and treatment. (Tr. 195-98.)
Plaintiff was admitted to Christian Hospital on January 9, 2011, for
cardiology consultation given her complaints of chest pressure with walking or
exertion, and shortness of breath. A cardiac catheterization showed 80% ostial
stenosis of the left main coronary artery, which was determined to be critical, and
plaintiff underwent double bypass surgery on January 13. Dr. Nabil Munfakh
performed the surgery. Plaintiff was discharged from the hospital on January 18
and was diagnosed with coronary artery disease (CAD), status post coronary artery
bypass graft with left main stenosis; chronic obstructive pulmonary disease
(COPD); excessive alcohol consumption; hypertension; and probable tracheabronchitis. Plaintiff’s discharge medications included Advair, aspirin, Carvedilol
(Coreg), Lasix, Levaquin, potassium, Tylenol, Proventil, and oxycodone. Plaintiff
was instructed to increase her activity as tolerated. (Tr. 225-26.)
Plaintiff followed up with Dr. Munfakh in February and April 2011 who
noted plaintiff to be doing well. Plaintiff was instructed to increase her activity
level. No swelling was noted about plaintiff’s extremities during these
examinations. Although plaintiff complained of severe left-sided chest pain in
April, Dr. Munfakh determined it to be a sprain and nothing serious. He instructed
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plaintiff to take anti-inflammatory medication. (Tr. 335, 336.)
Plaintiff underwent a consultative physical examination on June 13, 2011,
for disability determinations. Plaintiff complained to Dr. A. Rashid Qureshi that
she experienced shortness of breath, chest pain and tightness, orthopnea, and
swelling in both legs. Plaintiff also reported that she had rheumatoid arthritis
affecting her ankles and both hands. Plaintiff reported that she could not perform
sustained work for eight hours because sitting, standing, lifting, or carrying caused
her symptoms. Dr. Qureshi’s physical examination showed evidence of grade I
arteriosclerotic changes at the fundi, bilateral rales and rhonchi in the lungs, and
systolic murmur with S3 gallop. Range of motion examination showed that
plaintiff had difficulty with dorsiflexion, palmar flexion, and ulnar and radial
deviation with both hands. Plaintiff had decreased grip strength and could not
fully extend her hands, make a fist, or oppose her fingers. Plaintiff was also noted
to have problems with flexion of the spine. Muscle weakness was noted about the
lower extremities, bilaterally, and plaintiff had limited strength about the upper
extremities. Dorsiflexion and plantar flexion was also reduced about the ankles,
bilaterally. Dr. Qureshi noted plaintiff’s effort to be “fair” throughout the range of
motion examination. (Tr. 319-20, 323-24.) Dr. Qureshi diagnosed plaintiff with
atherosclerotic heart disease, status post coronary artery bypass surgery; congestive
heart failure, functional class II-III; uterine fibroid; and rheumatoid arthritis; and
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generally opined that plaintiff was unable to sit, lift, or carry. (Tr. 321, 325.)
During her follow up examination with Dr. Munfakh on June 14, plaintiff
complained that her incisional site was tender, and Dr. Munfakh noted plaintiff to
have a hypersensitive painful reaction along the sternal incision. Dr. Munfakh
opined that nothing much could be done and suggested the possibility of taking
Tegretol or referral to a pain specialist, but plaintiff decided to wait and see if the
pain improved over time. (Tr. 337.)
Plaintiff visited Dr. Richards at Grace Hill/Murphy-O’Fallon Clinic on June
24 and reported having tenderness about the incisional site.2 Plaintiff reported that
she had no chest pain, shortness of breath, fatigue, or swelling, and physical
examination was normal in all respects except for notable tenderness about the
incisional scar. Dr. Richards considered plaintiff’s congestive heart failure to be
stable. Plaintiff continued to report that financial issues affected her ability to take
her medications regularly. Dr. Richards prescribed Tramadol for incisional pain as
well as other medications for asthma, CAD, congestive heart failure, and
hypertension. Plaintiff was given all of her medications at no cost. (Tr. 473-76.)
On July 7, 2011, Dr. Nancy Ceaser, a medical consultant with disability
determinations, reviewed the evidence of record relating to plaintiff’s treatment
2

Dr. Richards noted that he last saw plaintiff in December 2010.

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both before and after plaintiff’s heart bypass surgery, as well as evidence from
plaintiff’s consultative examination with Dr. Qureshi. Based upon her review of
the evidence, Dr. Ceaser completed a Physical Residual Functional Capacity
(RFC) Assessment in which she opined that plaintiff could lift twenty pounds
occasionally and ten pounds frequently, stand and/or walk for a total of at least two
hours in an eight-hour workday, sit for a total of about six hours in an eight-hour
workday, and was unlimited in her ability to push or pull. Dr. Ceaser further
opined that plaintiff could frequently balance and occasionally stoop, kneel,
crouch, crawl, and climb ramps and stairs but should never climb ladders, ropes, or
scaffolds. With respect to environmental limitations, Dr. Ceaser opined that
plaintiff should avoid all exposure to hazards and avoid moderate exposure to
fumes, odors, dusts, gases, and poor ventilation. Dr. Ceaser further opined that
plaintiff should avoid concentrated exposure to extreme cold and heat, wetness,
humidity, and vibration. Dr. Ceaser opined that plaintiff had no manipulative,
visual, or communicative limitations. (Tr. 326-32.)
During her follow up appointment with Dr. Munfakh in September 2011,
plaintiff continued to complain of incisional pain, but Dr. Munfakh noted there to
be no evidence of angina. Dr. Munfakh determined plaintiff to be okay from a
cardiac standpoint and noted that he would release plaintiff from his care in six
months upon review of the results of a cardiac stress test. (Tr. 338.)
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In September and October 2011, plaintiff was admitted to Christian Hospital
on three occasions for treatment of acute bronchitis, pneumonia, and gastritis
associated with her complaints of arm and chest pain and chest pressure. Physical
examinations and diagnostic tests during these admissions showed no evidence of
cardiac disease, including no evidence of pericardial effusion. Plaintiff had no
complaints of shortness of breath. Nor was there evidence of pain or swelling
about the joints or muscles, and plaintiff had normal range of motion about the
extremities. (Tr. 347-62, 369-76, 386-88, 402-03.)
Plaintiff followed up with Dr. Munfakh in March 2012, who noted the
results of a recent stress test to show ejection fraction at 55% with no myocardial
effusion defects. Dr. Munfakh determined that plaintiff had recovered fully from
her surgery and had done well. Although plaintiff reported continued tenderness
along her incision, she reported having no angina or shortness of breath, and
physical examination was normal in all respects with no peripheral swelling noted.
(Tr. 339, 405.) This was plaintiff’s last appointment with Dr. Munfakh.
Plaintiff had two emergency room visits at Christian Hospital in March and
June 2012 for hand and wrist pain after experiencing falls. Although swelling and
bruising associated with the injuries was noted, examinations showed full range of
motion and no other swelling. During the March visit, it was determined that
plaintiff had a fractured finger on the right hand, and a splint was applied. A splint
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was likewise applied to the left wrist during the June visit for treatment of a
hairline fracture. Relevant x-rays taken in March showed degenerative change in
the first carpometacarpal joint of the left wrist–considered to be osteoarthritis, and
mild degenerative change of the right wrist. (Tr. 407-24, 442-51.)
Plaintiff visited Dr. Richards on August 16, 2012, with complaints of
occasional chest pain and shortness of breath with climbing stairs or walking two
flat city blocks. Plaintiff reported having no tiredness, fatigue, or swelling. Dr.
Richards noted plaintiff to have insomnia-related complaints – including snoring,
gasping during sleep, and difficulty initiating and maintaining sleep – and
suspected that she had obstructive sleep apnea. Plaintiff reported that she had no
trouble with activities of daily living. Upon examination, Dr. Richards determined
plaintiff’s asthma to be stable and her hypertension not well controlled. Plaintiff’s
medications were adjusted. Dr. Richards referred plaintiff to cardiology at
ConnectCare for evaluation and treatment of chest pain. (Tr. 483-86.)
Plaintiff went to the emergency room at Christian Hospital on August 18,
2012, with complaints of lightheadedness and chest pain and reports of feeling
generally tired, fatigued with poor energy, and mild shortness of breath.
Diagnostic tests showed no congestive heart failure or cardiomegaly, and no
further cardiac evaluation was necessary. Plaintiff’s chest pain was determined to
be musculoskeletal in nature. Plaintiff’s sinus bradycardia and lightheadedness
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were determined to be related to plaintiff’s medication dosages. Plaintiff was
instructed to resume conservative treatment with a routine exercise program,
weight reduction, and good control of hypertension and hyperlipidemia. (Tr. 45458, 463.)
Plaintiff followed up with Dr. Richards on August 28 and reported no longer
being fatigued. Physical examination was unremarkable, and no swelling was
noted about the extremities. Upon review of the hospital’s directives, Dr. Richards
adjusted plaintiff’s medications. (Tr. 487-88.)
No other records of medical treatment appear in the record.
IV. The ALJ's Decision
The ALJ found that plaintiff had not engaged in substantial gainful activity
since January 26, 2011. The ALJ found plaintiff’s coronary artery disease,
residuals of bypass surgery, obesity, and asthma to be severe impairments, but that
plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 11.) The ALJ determined that plaintiff had the RFC
to perform sedentary work
except stand and/or walk for two hours in an eight-hour workday; sit
for at least six hours out of eight; occasionally climb ramps and stairs
but never ladders, ropes and scaffolds; occasionally stoop, kneel,
crouch and crawl; with no concentrated exposure to extreme cold,
extreme heat, wetness, humidity and vibration; avoid even moderate
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exposure to pulmonary irritants such as fumes, odors, dusts and gases;
and, no exposure to hazards (such as unprotected heights and moving
and dangerous machinery).
(Tr. 12.) The ALJ found plaintiff unable to perform her past relevant work. Upon
consideration of plaintiff’s age, education, work experience, and RFC, the ALJ
determined that vocational expert testimony supported a finding that plaintiff could
perform other work as it exists in significant numbers in the national economy, and
specifically, bench assembler and packager. The ALJ thus found that plaintiff had
not been under a disability since January 26, 2011. (Tr. 18-19.)
V. Discussion
To be considered disabled and entitled to receipt of SSI under the Social
Security Act, plaintiff must be unable to engage in any substantial gainful activity
by reason of a medically determinable physical or mental impairment(s) “which
can be expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A).
Plaintiff’s physical or mental impairment(s) must be of such severity that she is not
only unable to do her previous work but cannot, considering her age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). Plaintiff bears the
burden to prove that she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217

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(8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555
(8th Cir. 1992).
The Commissioner engages in a five-step evaluation process to determine
disability. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987). The Commissioner begins by deciding whether the claimant is engaged in
substantial gainful activity. If the claimant is working, disability benefits are
denied. At Step 2, the Commissioner decides whether the claimant has a severe
medically determinable impairment or combination of impairments, meaning that
which significantly limits her ability to do basic work activities. If the claimant's
impairment(s) is not severe, then she is not disabled. If the impairment(s) is
severe, the Commissioner then determines at Step 3 whether such impairment(s) is
equivalent to one of the impairments listed in 20 C.F.R., Part 404, Subpart P,
Appendix 1. If claimant's impairment(s) meets or equals one of the listed
impairments, she is conclusively disabled. At Step 4, the Commissioner assesses
the claimant’s RFC, that is, the most she can do despite her impairments, and
determines whether the claimant’s RFC prevents her from performing her past
relevant work. If the claimant can perform such work, she is not disabled. Finally,
if the claimant is unable to perform her past work, the Commissioner continues to
Step 5 and evaluates the claimant’s RFC with various vocational factors to
determine whether the claimant is capable of performing any other work in the
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economy. The claimant is entitled to disability benefits only if she is not able to
perform other work.
The Commissioner’s final decision 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). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). 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
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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) (internal citations omitted). 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). “If, after reviewing
the entire record, it is possible to draw two inconsistent positions, and the
Commissioner has adopted one of those positions,” the Commissioner’s decision
must be affirmed. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). The
decision may not be reversed merely because substantial evidence could also
support a contrary outcome. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
For the following reasons, substantial evidence on the record as a whole
supports the ALJ’s decision.
A finding of disability can be based only on medically determinable
impairments. These impairments “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques” and “must be established by medical
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evidence consisting of signs, symptoms, and laboratory findings[.]” 20 C.F.R. §
416.908. Only evidence from acceptable medical sources can establish the
existence of a medically determinable impairment. 20 C.F.R. § 416.913(a). A
claimant’s statements of symptoms alone cannot constitute a basis upon which to
find the existence of an impairment. See 20 C.F.R. §§ 416.908, 416.928(a). The
claimant bears the burden of providing medical evidence to the Commissioner
establishing the existence of medically determinable impairment(s). 20 C.F.R. §
416.912.
In her filings with the Court, plaintiff contends that she is disabled, in part,
because of restless leg syndrome and because of swelling and tightness in her
hands and feet caused by arthritis. (See Pltf.’s Memos. to Court, Doc. Nos. 17, 19.)
The evidence of record, however, does not establish these conditions to be
medically determinable impairments. Plaintiff did not allege in her application for
benefits that she was disabled because of either arthritis or restless leg syndrome.
Nor do diagnoses of these impairments based on credible clinical and laboratory
diagnostic techniques exist in the record.
To the extent consulting physician Dr. Qureshi reported his impression that
plaintiff had rheumatoid arthritis, a review of his report shows this impression to
be based upon plaintiff’s subjective claim that she had rheumatoid arthritis and not
upon any diagnostic imaging or laboratory testing. Although Dr. Qureshi observed
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plaintiff to have limited range of motion, the ALJ properly noted that no objective
evidence explains this globally decreased range of motion and, indeed, Dr. Qureshi
observed plaintiff to put forth only fair effort during the range of motion exam.
Further, a review of the record in its entirety shows plaintiff to have had full range
of motion with every other physical examination, including specific examinations
for wrist and hand injuries after falling. An ALJ does not err in discounting a
physician’s opinion when it is based on the claimant’s subjective reports and not
on a confirmed impairment and is inconsistent with other substantial evidence of
record. Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012); Teague v.
Astrue, 638 F.3d 611, 616 (8th Cir. 2011); Goff v. Barnhart, 421 F.3d 785, 790-91
(8th Cir. 2005).
In addition, further review of the record shows that – with the exception of
plaintiff’s hand injuries caused by falls – treating and examining physicians made
repeated physical findings during examinations that plaintiff exhibited no swelling
in her extremities. Plaintiff’s claimed symptoms of swelling and tightness with
arthritis simply enjoy no support in the record. Statements of symptoms alone
cannot constitute a basis upon which to find the existence of an impairment. See
20 C.F.R. §§ 416.908, 416.928(a).
The same holds true for plaintiff’s claimed impairment of restless leg
syndrome. Other than in plaintiff’s memoranda to this Court, the record is devoid
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of any mention of restless leg syndrome, whether through objective medical
findings or subjective complaints of symptoms.
Accordingly, because the medical evidence fails to establish arthritis or
restless leg syndrome as medically determinable impairments, the ALJ did not err
in failing to consider these conditions as bases for disability.
To the extent plaintiff claims that her bypass surgery and continued
symptoms of chest pain and shortness of breath render her disabled, the ALJ
properly noted the evidence of record to show that plaintiff’s surgery was fully
successful and resulted in no further cardiac issues. In addition, the ALJ noted that
plaintiff’s reported symptoms of chest pain and shortness of breath were noncardiac in nature, attributable to acute conditions such as pneumonia and gastritis
or related to medication effects, and resolved with treatment and adjustments to
medication. “If an impairment can be controlled by treatment or medication, it
cannot be considered disabling.” Wildman v. Astrue, 596 F.3d 959, 965 (8th Cir.
2010). See also Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (impairments
that are controllable or amenable to treatment do not support finding of total
disability).
Finally, plaintiff contends that the ALJ considered only the objective
medical evidence of record and not her subjective complaints when determining
her claim for disability. Because of the subjective nature of some symptoms, such
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as pain and shortness of breath, and the absence of any reliable techniques to
measure them, an ALJ may not rely only on the absence of an objective medical
basis to discount the severity of such subjective symptoms. Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted); see also
Renstrom, 680 F.3d at 1066. Instead, the ALJ must consider all evidence relating
to the claimant’s subjective complaints of disabling symptoms, 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, 739 F.2d at 1322 . When rejecting a
claimant's subjective complaints, the ALJ must make an express credibility
determination detailing his reasons for discrediting the testimony. Renstrom, 680
F.3d at 1066; 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). 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.
Here, in conjunction with consideration of the medical evidence of record in
determining plaintiff’s claim for disability, the ALJ also evaluated the credibility
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of plaintiff’s subjective complaints based on the factors set out in Polaski. A
review of the ALJ’s decision shows him to have thoroughly reviewed all the
evidence of record and to have identified inconsistencies from which he
determined plaintiff’s subjective complaints not to be entirely credible. For the
following reasons, the ALJ did not err in this determination.
First, as discussed above, the ALJ noted that objective medical evidence did
not support the severity of plaintiff’s complaints as they related to her medically
determinable impairments and, further, that no treatment records showed any
physician to have placed restrictions on plaintiff’s activities. See Tucker v.
Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (complaints not entirely credible
where treating physician placed no restrictions on claimant despite alleged severity
of symptoms); Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994) (absence of
objective medical evidence supporting allegations of pain is one factor the ALJ is
required to consider). The ALJ also noted that plaintiff sought treatment on a
fairly infrequent basis and that the routine, conservative treatment given was
generally successful in controlling her claimed symptoms. See Moore v. Astrue,
572 F.3d 520, 525 (8th Cir. 2009) (conservative treatment during period of alleged
disability inconsistent with complaints of disabling symptoms); Ostronski v.
Chater, 94 F.3d 413, 419 (8th Cir. 1996) (infrequent medical treatment during
relevant period suggest that symptoms not so great as to preclude the performance
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of work); Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (impairments that are
controllable or amenable to treatment do not support a finding of disability).
The ALJ also noted the record to show that plaintiff was not fully compliant
in taking her medications. A claimant’s non-compliance with prescribed treatment
is a basis upon which to find her subjective complaints not credible. Wildman, 596
F.3d at 968-69; Brown v. Barnhart, 390 F.3d 535, 542 (8th Cir. 2004). To the
extent financial difficulties may have contributed to such non-compliance, the
undersigned notes that upon reporting such difficulties to her treating physician,
plaintiff was provided all of her medication at no cost. There is no evidence that
plaintiff was ever denied medical treatment due to financial reasons. See Goff, 421
F.3d at 793.
The ALJ also noted plaintiff’s work history prior to her alleged disability to
be sporadic, questioning whether her continuing unemployment was on account of
medical impairments. See Pearsall, 274 F.3d at 1218 (lack of work history may
indicate lack of motivation to work rather than lack of ability); Woolf v. Shalala, 3
F.3d 1210, 1214 (8th Cir. 1993) (claimant’s credibility lessened by poor work
history). The ALJ further noted the record to show inconsistent statements made
by plaintiff to her health care providers regarding alcohol consumption. See Ply v.
Massanari, 251 F.3d 777, 779 (8th Cir. 2001) (inconsistency in claimant’s
statements valid reason to discredit subjective complaints). Finally, the ALJ noted
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plaintiff’s reported daily activities of caring for her husband and son, cleaning,
shopping in stores, doing all of the cooking, using public transportation, visiting
with family every day, managing the family finances, and watching television not
to be as limiting as would be expected with plaintiff’s claims of disabling
symptoms. See Ponder v. Colvin, 770 F.3d 1190, 1195-96 (8th Cir. 2014) (activity
level which includes performing light housework, washing dishes, cooking for
family, doing laundry, handling finances, shopping, watching television, driving
vehicle, leaving house alone, attending church, and visiting with family
undermines assertion of total disability).
These reasons to discount plaintiff’s subjective complaints of disabling
symptoms 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 considered plaintiff’s subjective complaints on the
basis of the entire record and set out numerous inconsistencies that detracted from
her credibility. The ALJ did not rely solely on the lack of objective medical
evidence to find plaintiff’s subjective complaints not credible. 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).
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A review of the ALJ’s decision in its entirety shows him to have considered
all of the credible, relevant evidence of record – including medical records, the
observations of treating physicians and others, and the claimant’s own description
of her symptoms and limitations – and to have properly determined plaintiff’s
RFC, that is, the most she can do despite her physical or mental limitations. Goff,
421 F.3d at 793; Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004); 20 C.F.R. § 416.945(a).
Accord Social Security Ruling 96-8p, 1996 WL 374184, at *7 (Soc. Sec. Admin.
July 2, 1996). Some medical evidence supports the RFC. Based upon this RFC,
the ALJ determined that plaintiff was unable to perform her past relevant work but,
upon consideration of her age and other vocational factors, found plaintiff able to
perform other work as it exists in significant numbers in the national economy and
thus not disabled. Because this finding was based upon the testimony of a
vocational expert given in response to a hypothetical question that included those
impairments and limitations properly found by the ALJ to be substantially
supported by the record as a whole, the ALJ did not err in relying on this testimony
to find plaintiff not disabled. Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir.
2011); Buckner v. Astrue, 646 F.3d 549, 560-61 (8th Cir. 2011).
Because the ALJ’s determination of non-disability was based upon his
proper evaluation and consideration of all the evidence of record, and his
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determination is based upon substantial evidence on the record as a whole, the
ALJ’s conclusion that plaintiff was not disabled at any time since January 26,
2011, is affirmed.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

Dated this 24th day of April, 2015.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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