Adams v. Colvin
Filing
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MEMORANDUM OPINION : IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Shirley Padmore Mensah on 9/17/18. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMECA ADAMS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.
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Case No. 4:16-CV-2155-SPM
MEMORANDUM OPINION
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Nancy A. Berryhill, the Deputy Commissioner of Operations, Social
Security Administration (the “Commissioner”), denying the application of Plaintiff Ameca Adams
(“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 15). Because
I find the decision denying benefits was supported by substantial evidence, I will affirm the
Commissioner’s denial of Plaintiff’s application.
I.
FACTUAL BACKGROUND
Plaintiff was born June 26, 1976. (Tr. 40). She lives with her husband and five children.
(Tr. 40). She has completed the eleventh grade and has had no additional vocational training. (Tr.
41). Her last job was performing in-home day care, which she did from 2006 to 2008; she stopped
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because she was “very weak,” she needed people to help her, and she could not find people to help
her. (Tr. 42, 44-45).
Plaintiff testified that she cannot do her prior work because of her lack of strength and
because of her heart rate. (Tr. 43). She has attacks wherein her heart rate increases and she gets
dizzy, lightheaded, and a little confused. (Tr. 43). She never knows when they will come on. (Tr.
46). They occur about three to four times a week. (Tr. 46). If she is not having an attack, she is
okay. (Tr. 46). Plaintiff has problems being on her feet and sometimes has to lean against
something if she stands too long, though she does not use any assistive devices. (Tr. 45). She can
walk for about three minutes before having to stop to sit. (Tr. 45). She cannot make it up or down
a flight of stairs, because she gets lightheaded and dizzy. (Tr. 45). Plaintiff is bothered when it is
really hot or really cold. (Tr. 49).
Plaintiff goes to the grocery store about three times a month and uses the electric sit-down
cart. (Tr. 47). She does not do any yard work, and her children do most of the sweeping,
vacuuming, and dishwashing. (Tr. 47). Her husband and children do the laundry because it is
downstairs, and the steps are too difficult for her. (Tr. 48). She drives two or three times a week
and sometimes pulls over when her heart rate goes up and she gets dizzy. (Tr. 40-41).
Plaintiff takes atenolol, aspirin, and nitroglycerine for her heart problems. (Tr. 48). She
also has a pacemaker. (Tr. 48). When she had her pacemaker installed, she was told to avoid stress
and to back down on her walking activities. (Tr. 49). She was also given a handicap sticker so she
would not have to walk as much. (Tr. 49).
With regard to Plaintiff’s medical records, the Court accepts the facts as presented in the
parties’ briefs and statements of facts. The Court will address specific facts as needed in the
discussion below.
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II.
PROCEDURAL BACKGROUND
On May 29, 2013, Plaintiff applied for DIB and SSI, alleging that she had been unable to
work since June 11, 2012. (Tr. 127-38). Her application was initially denied. (Tr. 54-55). On
September 16, 2013, Plaintiff filed a request for hearing by an ALJ. (Tr. 62-66). On September 22,
2015, after a hearing, the ALJ issued an unfavorable decision. (Tr. 30-34). On November 30, 2015,
Plaintiff filed a Request for Review of Hearing Decision with the Social Security Administration’s
Appeals Council. (Tr. 20). On January 19, 2016, the Appeals Council denied Plaintiff’s request
for review. (Tr. 7-10). Plaintiff has exhausted all administrative remedies, and the decision of the
ALJ stands as the final decision of the Commissioner of the Social Security Administration.
III.
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled
a person who is unable “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.” 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
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To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the
claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); McCoy, 648
F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant
disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §§
404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§§ 404.1520(e), 416.920(e), 416.945(a)(1). At Step Four, the Commissioner determines whether
the claimant can return to his past relevant work, by comparing the claimant’s RFC with the
physical and mental demands of the claimant’s past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the
claimant can perform his past relevant work, he is not disabled; if the claimant cannot, the analysis
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proceeds to the next step. Id. At Step Five, the Commissioner considers the claimant’s RFC, age,
education, and work experience to determine whether the claimant can make an adjustment to
other work in the national economy; if the claimant cannot make an adjustment to other work, the
claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648
F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
IV.
THE ALJ’S DECISION
The ALJ began by noting that Plaintiff’s allegation of disability since June 11, 2012
constituted an implicit request to reopen an adverse Title II determination dated July 19, 2012. The
ALJ denied that request, finding that the record did not show a good reason to reopen it. (Tr. 25).
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not engaged in
substantial gainful activity since July 20, 2012; that Plaintiff had the severe impairments of
tachycardia and cardiomyopathy; and that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. § 404, Subpart P, Appendix 1 (Tr. 27-28). The ALJ found that Plaintiff had the RFC to
perform sedentary work as defined in the regulations, with several additional physical and mental
restrictions (discussed below). (Tr. 28). Relying on the testimony of a vocational expert, the ALJ
found that Plaintiff was unable to perform her past relevant work as a babysitter. (Tr. 30). However,
he also found that a significant number of jobs existed in the national economy that she could
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perform, including addresser (Dictionary of Occupational Titles No. 209.587-010, document
preparer (Dictionary of Occupational Titles No. 249.587-018), and press-clippings cutter and
paster (Dictionary of Occupational Titles No. 249.587-014). (Tr. 30). The ALJ concluded that
Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 30).
V.
DISCUSSION
Plaintiff challenges the ALJ’s decision on three grounds: (1) that the RFC is not supported
by substantial evidence; (2) that the ALJ improperly discounted Plaintiff’s testimony; and (3) that
remand is required so that the ALJ can consider new evidence from registered nurse David Palmer
that was submitted to the Appeals Council.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Substantial
evidence ‘is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting
Moore, 572 F.3d at 522). In determining whether substantial evidence supports the
Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “do[es] not reweigh the evidence
presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reasons and substantial
evidence.” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). “If, after
reviewing the record, the court finds it is possible to draw two inconsistent positions from the
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evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)).
B. The RFC Assessment
Plaintiff’s first argument is that the ALJ’s RFC assessment is not supported by substantial
evidence. A claimant’s RFC is “the most a claimant can do despite [the claimant’s] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)). “The ALJ
must assess a claimant’s RFC based on all relevant, credible evidence in the record, ‘including the
medical records, observations of treating physicians and others, and an individual’s own
description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
The ALJ made the following RFC finding:
Since July 20, 2012, [Plaintiff] has had the residual functional capacity to perform
sedentary work as that term is defined by regulations, except that she has been able
to sit eight hours in an eight-hour day and stand and/or walk a total of one hour in
an eight-hour day, and she has been unable to: crawl or climb ladders, ropes or
scaffolds; have concentrated exposure to extreme cold, heat, or humidity; have
concentrated exposure to pulmonary irritants such as fumes, odors, dust and gases;
operate moving machinery; or have exposure to unprotected heights or hazardous
machinery. She has also been able to perform simple, routine, repetitive tasks, but
the tasks must be performed in a low-stress environment (“low stress” being
defined as requiring no more than occasional decision-making and involving no
more than occasional changes in the work setting).
(Tr. 28).
After review of the record, the Court finds substantial evidence to support this RFC. First,
the RFC is supported by the opinion of non-examining medical expert Dr. Harvey L. Alpern, which
the ALJ gave “considerable evidentiary weight” based on Dr. Alpern’s credentials and the
consistency of his opinions with the medical evidence. (Tr. 29). On August 25, 2015, Dr. Alpern
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completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) (Tr.
778-83) and a Medical Interrogatory Physical Impairment form (Tr. 785-87). Dr. Alpern opined
that Plaintiff could lift and carry up to 20 pounds frequently (Tr. 778); could sit, stand, or walk for
two hours at one time and for six hours total in an eight-hour work day (Tr. 779); could only
occasionally reach because of her pacemaker (Tr. 780); could only occasionally climb stairs,
ramps, ladders, or scaffolds, balance, stoop, kneel, crouch, and crawl due to her lower back pain
(Tr. 781); could never be around unprotected heights or moving mechanical parts because of her
pacemaker (Tr. 782); and could perform activities such as shopping, traveling without a
companion, ambulating without using a wheelchair or walker, walking a block at a reasonable pace
on uneven surfaces, climbing a few steps at a reasonable pace with the use of a single hand rail,
and sorting, handling, or using paper and files. (Tr. 783). Dr. Alpern noted that Plaintiff had a
pacemaker and had recurrent hospital visits for chest pain and palpitations, but that no cardiac
cause was found for the pain and that Plaintiff was treated for gastritis. (Tr. 785). He also noted
that Plaintiff had no evidence of cardiomyopathy (even though it was listed as a diagnosis), and
no coronary artery disease had been found. (Tr. 785). He also discussed the medical evidence
related to cardiomegaly and noted that cardiomegaly was only found on portable X-rays, which
are not valid, and that when standard techniques were used, the results were normal or borderline.
(Tr. 786). Dr. Alpern’s opinions regarding Plaintiff’s fully support the ALJ’s finding that Plaintiff
could perform sedentary work with several additional limitations.
As the ALJ also found, the RFC finding is supported by Plaintiff’s medical records, which
generally reflect objective findings that were typically normal or mild. (Tr. 29). Her treating
physicians’ cardiovascular examination findings have consistently been normal, with normal rate,
regular rhythm, normal heart sounds, intact distal pulses, no gallop, no friction rub, and no murmur
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heard. (Tr. 224, 234, 238, 241-42, 258, 263, 270, 278, 295, 319, 341, 402, 432, 433, 437, 462, 469,
476, 486, 492, 552, 560, 578, 600, 618, 633-34, 653, 684, 714, 720, 723, 746). After a “general
cardiology evaluation” in November 2014, Dr. Serota described her cardiac workup as “negative.”
(Tr. 491-92). In June 2015, it was noted that although she had chest pain, she had an
“unremarkable” cardiac workup. (Tr. 714). Chest X-rays showed cardiomegaly (often described
as “mild” or “borderline”), but not active disease. (Tr. 245-46, 300-01, 346-47, 425, 453, 552, 564,
583, 603, 636-37, 657-58, 699-700). Echocardiograms showed generally normal findings aside
from mild mitral valve regurgitation and an abnormal left ventricular ejection fraction on one date.
(Tr. 222, 285-86, 459, 481-82). Findings from a full pacemaker interrogation examination in
October 2012 were normal. (Tr. 226, 235). Plaintiff’s doctors also often suggested that her
symptoms did not have a cardiac cause, for example noting that her shortness of breath was “not
related to her cardiac arrhythmia problem” (Tr. 226, 235); that her chest pain was “of unclear
etiology” (Tr. 304); that her chest pain “appears to be noncardiac” (Tr. 434); that her palpitations
“appear to be consistent with anxiety” (Tr. 684); that her upper abdominal pain “could represent
gastric or duodenal ulcer” (Tr. 720); or that her chest pain “may be secondary to an upper
respiratory infection” (Tr. 724).
Additionally, although Plaintiff’s treatment records show that Plaintiff occasionally
experienced chest pains, heart palpitations, arrhythmia, shortness of breath, they do not indicate
that she experienced ongoing symptoms so severe that they would preclude sedentary work. For
example, although Plaintiff reported symptoms of arrhythmia, she described the symptoms as
lasting less than five minutes. (Tr. 256, 262, 460, 484).
The Court acknowledges that the record contains some abnormal findings that tend to
support Plaintiff’s claims. Plaintiff had an abnormal ejection fraction on one occasion (Tr. 222),
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and chest X-rays showed cardiomegaly (Tr. 245, 346-47, 425, 453, 709). However, the ALJ
reviewed and discussed the record as a whole and reasonably found that it supported the RFC
finding. The Court cannot reweigh that evidence.
Plaintiff argues that the ALJ erred by placing too much reliance on the opinion of Dr.
Alpern, who is a medical expert who never examined Plaintiff. The Court acknowledges that the
opinion of a non-examining physician, standing alone, does not constitute substantial evidence.
See, e.g., Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004). However, an ALJ may properly
rely on such opinions as one part of the record where the record as a whole provides support for
the ALJ’s findings. Id.; see also 20 C.F.R. §§ 404.1527(c) 416.927(c). 1 As discussed above, the
ALJ did not rely solely on Dr. Alpern’s opinions, but instead relied on them in conjunction with
the medical treatment records and the ALJ’s assessment of Plaintiff’s subjective complaints.
Moreover, the ALJ gave good reasons for giving significant weight to Dr. Alpern’s opinions. As
the ALJ properly pointed out, Dr. Alpern’s credentials supported his opinion. (Tr. 29). The record
show that Dr. Alpern is a cardiologist with decades of experience, and Plaintiff’s disability claim
was based entirely on her heart condition. (Tr. 767-76). See 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5) (“We generally give more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.”); Grable v. Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014) (“We generally give greater
weight to the opinion of a specialist about medical issues in the area of specialty.”). The ALJ also
discussed at length the ways in which Dr. Alpern’s opinions were consistent with the medical
1
These regulations apply to claims filed before March 27, 2017. For claims filed after March 27,
2017, the rules governing the ALJ’s evaluation of medical opinion evidence have been amended.
Throughout this opinion, the Court will refer to the version of the regulations that applies to claims
filed before March 27, 2017.
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evidence. (Tr. 29). See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more
consistent an opinion is with the record as a whole, the more weight we will give to that opinion.”).
In addition, the Court notes that Dr. Alpern cited to evidence in the medical records to support his
opinions, including the implantation of Plaintiff’s pacemaker; Plaintiff’s reports of heart
palpitations; and the results of objective testing including chest X-rays, echocardiograms,
measurements of heart rhythm, and other findings. (Tr. 29, 780, 782, 785-86). The fact that Dr.
Alpern cited evidence to support his opinion supports the ALJ’s decision to give significant weight
to that opinion. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and laboratory
findings, the more weight we will give that medical opinion. The better an explanation a source
provides for a medical opinion, the more weight we will give that medical opinion.”).
Plaintiff also argues that the ALJ erred by failing to weigh the opinion of his treating
cardiologist, Dr. Harvey Serota. On June 11, 2012, Dr. Serota, submitted a letter listing Plaintiff’s
diagnoses and stating:
I am writing to inform you that as of today, Ms. Adams is now to be considered
100% total and permanently disabled. Her health conditions are severe enough at
this point to hinder her unable to have any form of gainful employment. She
develops symptoms with very minimal exertion &/or stress.
(Tr. 212). The ALJ did not expressly discuss Dr. Serota’s opinion. This may have been because
Dr. Serota’s opinion was dated prior to the relevant period under consideration, which began on
July 20, 2012. The ALJ noted in his decision that “evidence pre-dating July 20, 2012 is irrelevant
except in a historical context.” (Tr. 25).
The relevant regulations require the Commissioner to evaluate every “medical opinion” he
or she receives, with “medical opinion” defined as “statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and severity of [the
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claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what
[the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental
restrictions” 20 C.F.R. §§ 404.1527(a), (b); 416.927(a), (b). They also state that the Commissioner
“will always give good reasons in [her] notice of determination or decision for the weight [she]
give[s] [a claimant’s] treating source’s opinion.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Applying these regulations, courts have not hesitated to remand cases for further consideration
where an ALJ failed to give good reasons for failing to give weight to the medical opinion of a
treating physician. See Anderson v. Barnhart, 312 F. Supp. 2d 1187, 1194 (E.D. Mo. 2004)
(finding that because a treating doctor had “offered a medical opinion” and the ALJ had not
evaluated it, remand was required); Clover v. Astrue, No. 4:07CV574–DJS, 2008 WL 3890497, at
*12 (E.D. Mo. Aug.19, 2008) (remanding where the ALJ failed to give reasons for discounting an
RFC questionnaire completed by a treating physician).
However, the regulations also state that “[o]pinions on some issues . . . are not medical
opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are
administrative findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. § 404.1527(e). These include “[o]pinions that you are disabled.”
Id. The Eighth Circuit has repeatedly held that a treating physician’s opinion that a claimant is
“disabled” or “unable to work” is not a “medical opinion” that is entitled to credit under the
regulations, because it is an opinion on a question reserved to the Commissioner. See Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“[T]reating physicians’ opinions are not medical
opinions that should be credited when they simply state that a claimant can not be gainfully
employed, because they are merely ‘opinions on the application of the statute, a task assigned
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solely to the discretion of the [Commissioner].’”) (quoting Krogmeier v. Barnhart, 294 F.3d 1019,
1023 (8th Cir.2002)). Accord Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010).
Dr. Serota’s opinion does not specify any particular functional limitations that Plaintiff has
as a result of her impairments, but rather states that Plaintiff “is now to be considered 100% total
and permanently disabled” and that “[h]er health conditions are severe enough at this point to
hinder her unable to have any form of gainful employment.” (Tr. 212). These are merely opinions
on whether Plaintiff is disabled, a matter that is reserved to the Commissioner, and thus they are
not entitled to be treated as medical opinions under the regulations. Dr. Serota’s statement that
Plaintiff “develops symptoms with very minimal exertion &/or stress” might arguably be
considered a medical opinion. However, it is so vague that it is unclear how the ALJ could have
given credit to it, particularly because it does not specify what types of exertion or stress produce
symptoms, nor does it state how severe the symptoms are when produced. Moreover, the ALJ’s
RFC restriction to low-stress work at the sedentary exertional level already accounts for the fact
that Plaintiff cannot tolerate significant stress or exertion.
The Court further notes that Dr. Serota’s opinion that Plaintiff was disabled was dated prior
to the relevant disability period, and thus was of significantly less relevance. See Baker v. Berryhill,
720 F. App’x 352, 355 (9th Cir. 2017) (no reversible error in ALJ’s failure to discuss opinion
evidence dated prior to alleged onset date, because “medical opinions predating the alleged onset
date ‘are of limited relevance’”) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1165 (9th Cir. 2008)). This opinion was based entirely on evidence related to a period for which
Plaintiff’s disability application has already been denied, it and was made without consideration
of any of the evidence regarding Plaintiff’s diagnoses, symptoms, and limitations during the
relevant period.
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For all of the above reasons, the Court finds that there was no reversible error in the ALJ’s
failure to discuss Dr. Serota’s letter and that the ALJ’s RFC assessment was supported by
substantial evidence in the record as a whole. Thus, Plaintiff’s first argument is without merit.
C. The ALJ’s Assessment of Plaintiff’s Subjective Complaints
Plaintiff’s second argument is that the ALJ erred in his evaluation of Plaintiff’s subjective
complaints. 2 When evaluating a plaintiff’s subjective complaints, the ALJ must consider several
factors: “(1) the claimant’s daily activities; (2) the duration, intensity, and frequency of [the
symptoms]; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history; and (7) the
absence of objective medical evidence to support the claimant’s complaints.” Moore, 572 F.3d at
524 (citing Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008), and Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984)). “An ALJ who rejects subjective complaints must make an express
credibility determination explaining the reason for discrediting the complaints.” Moore, 572 F.3d
at 524 (quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)). However, the ALJ is not
required to explicitly discuss each of these factors in relation to a claimant. Id. The Court “will
defer to the ALJ’s credibility finding if the ALJ ‘explicitly discredits a claimant’s testimony and
gives a good reason for doing so.’” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting
Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010)).
2
The Commissioner has issued a new ruling, applicable to decisions made on or after March 28,
2016, that eliminates the use of the term “credibility” when evaluating subjective symptoms. Social
Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). This clarifies that
“subjective symptom evaluation is not an examination of an individual’s character.” However, the
factors to be considered remain the same under the new ruling. See id. at *13 (“Our regulations on
evaluating symptoms are unchanged.”). See also 20 C.F.R. §§ 404.1529, 416.929.
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The Court finds that the ALJ conducted a proper analysis of Plaintiff’s subjective
complaints, supported by good reasons and substantial evidence. The ALJ expressly found
Plaintiff’s complaints only partially credible after consideration of several of the relevant factors.
(Tr. 29-30). First, as discussed above, the ALJ considered objective medical evidence showing
generally normal or mild examination findings. (Tr. 29). See Goff v. Barnhart, 421 F.3d 785, 79293 (8th Cir. 2005) (holding that it was proper for the ALJ to consider unremarkable or mild
objective medical findings as one factor in assessing subjective complaints). Second, with regard
to Plaintiff’s daily activities, the ALJ reasonably found that Plaintiff’s assertion that she could not
perform any household chores was at odds with her ability to care for children aged 5, 11, and 13.
(Tr. 29, 47-48, 173). See Vance v. Berryhill, 860 F.3d 1114, 1121 (8th Cir. 2017) (finding “[t]he
inconsistency between [the claimant’s] subjective complaints and evidence regarding her activities
of daily living” raised questions about the weight to give to her subjective complaints). Third, the
ALJ also discussed the intensity and frequency of Plaintiff’s symptoms and reasonably considered
her testimony that her symptoms occurred only when she had an “attack,” which occurred about
three or four times a week, and that she was otherwise okay (Tr. 29, 46), and her reports to her
doctors that her episodes of arrhythmias lasted less than five minutes. (Tr. 29, 256, 262, 269, 460,
484). He also reasonably considered that although Plaintiff had some difficulty being on her feet
and walking, she acknowledged that she did not have such severe limitations that she needed to
use a cane or walker. (Tr. 29, 45, 49). Fourth, with regard to Plaintiff’s work history, the ALJ
reasonably considered that Plaintiff’s earnings record prior to her alleged onset date was minimal,
given that during the ten-year period from 2002 to 2011, she had no income in three years and less
than $8,000 in annual income in four years. (Tr. 29-30, 155-56, 158). A sporadic work history is
a proper consideration in evaluating subjective complaints of disabling limitations. See Julin v.
15
Colvin, 826 F.3d 1082, 1087 (8th Cir. 2016) (“The ALJ reasonably concluded that [the claimant’s]
‘sporadic work history raises some questions as to whether the current unemployment is truly the
result of medical problems.’”). See also Bernard v. Colvin, 774 F.3d 482, 489 (8th Cir. 2014)).
In sum, the Court finds that the ALJ conducted an express evaluation of Plaintiff’s
subjective complaints, considered several of the relevant factors, and gave good reasons for finding
Plaintiff’s subjective complaints not entirely credible. The Court will therefore defer to that
analysis. See Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (“If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, [the court] will normally
defer to the ALJ’s credibility determination.”) (quoting Juszczyk v. Astrue, 542 F.3d 626, 632 (8th
Cir. 2008)).
D. Evidence Submitted to the Appeals Council: The Opinion of Registered
Nurse David Palmer
Plaintiff’s final argument is that remand is required so that the ALJ can evaluate the opinion
of a registered nurse, David Palmer, who submitted opinion evidence to the Appeals Council after
the ALJ’s decision. On February 17, 2016 (about five months after the date of the ALJ’s decision),
Mr. Palmer completed a Cardiac RFC Questionnaire for Plaintiff. (Tr. 12-16). Mr. Palmer stated
that he had seen Plaintiff every three to six months since 2009. (Tr. 12). Mr. Palmer stated that
Plaintiff’s diagnoses were chest pain, shortness of breath, and MR, 3 and that her New York Heart
Association functional classification was Class III. Plaintiff’s prognosis was “Lifelong Limited
Mobility d/t SOB/Palpitations.” (Tr. 12). When asked to state the clinical findings, laboratory, and
test results that showed Plaintiff’s medical impairments, Mr. Palmer noted that she had an ejection
3
The Court’s review of the record suggests that “MR” may refer to “mitral regurgitation.”
16
fraction of 60% on October 9, 2015. 4 (Tr. 12). Mr. Palmer stated that Plaintiff had chest pain,
anginal equivalent pain, shortness of breath, fatigue, weakness, palpitations, and dizziness; that
Plaintiff has a marked limitation of physical activity; that stress exacerbates Plaintiff’s chest pain;
that Plaintiff would be capable of low stress jobs; and that Plaintiff’s cardiac symptoms would
frequently be severe enough to interfere with attention and concentration needed to perform even
simple work tasks. (Tr. 12-13). Mr. Palmer found that Plaintiff could stand or walk less than two
hours a day; could sit at least six hours a day; and did not need to shift positions at will. (Tr. 14).
However, he also found that she would need to take breaks to sit quietly for 30 minutes every one
to two hours. (Tr. 14). He also stated that if she had a sedentary job, her legs would need to be
elevated on a chair 80% of the time. (Tr. 14). Mr. Palmer found that Plaintiff could frequently lift
less than ten pounds and occasionally up to twenty pounds, and could only rarely crouch or squat,
climb ladders, or climb stairs. (Tr. 15). He also found that she would need to avoid exposure to
several environmental factors, including cigarette smoke and temperature extremes. (Tr. 15). He
also opined that Plaintiff would be absent from work, on average, two or three days a month. (Tr.
16). The Appeals Council denied Plaintiff’s request for review, finding that the evidence from Mr.
Palmer was dated in 2016 and thus did not affect the decision about whether Plaintiff was disabled
on or before September 22, 2015. (Tr. 8).
Where, as here, “the Appeals Council denies review of an ALJ’s decision after reviewing
new evidence, “[the Court does] not evaluate the Appeals Council’s decision to deny review, but
rather [it] determine[s] whether the record as a whole, including the new evidence, supports the
ALJ’s determination.” McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir. 2013) (quoting
4
As written, this date would indicate that this finding was made after the ALJ’s decision. However,
it appears likely that Mr. Palmer was actually referring to an October 9, 2013 echocardiogram
showing a 60% ejection fraction. (Tr. 481-82).
17
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000)). Accord Perks v. Astrue, 687 F.3d 1086,
1093 (8th Cir. 2012). The Eighth Circuit has noted that this means that the Court “must speculate
to some extent on how the administrative law judge would have weighed the newly submitted
reports if they had been available for the original hearing,” which is “a peculiar task for a reviewing
court.” Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). Accord Van Vickle v. Astrue, 539 F.3d
825, 828 n.2 (8th Cir. 2008).
After review of the record, the Court finds that even when Mr. Palmer’s opinion is
considered, the ALJ’s decision is supported by substantial evidence in the record as a whole. The
Court first notes that as a nurse, Mr. Palmer is not an “acceptable medical source” and, thus, is not
considered a “treating source” whose opinion is entitled to controlling weight. 20 C.F.R.
§§ 404.1513(a) & (d)(1), 416.913(a) & (d)(1); SSR 06–03p, 2006 WL 2329939, at *2 (Aug. 9,
2006) (“[O]nly ‘acceptable medical sources’ can be considered treating sources, as defined in 20
CFR 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight.”).
However, he is an “other source[ ]” whose opinions “may provide insight into the severity of [the
individual’s] impairment(s) and how it affects the individual’s ability to function.” SSR 06–03p,
2006 WL 2329939, at *2. See also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (discussing nurse
practitioners as “other sources”); Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (same).
The ALJ has more discretion when evaluating an opinion from an “other” medical source than
when evaluating an opinion from an acceptable medical source. Raney v. Barnhart, 396 F.3d 1007,
1010 (8th Cir. 2005). In weighing opinions from other medical sources, the factors to be considered
may include the length and frequency of the relationship, how consistent the opinion is with other
evidence, the degree to which the source presents relevant evidence to support an opinion, how
18
well the source explains the opinion, whether the source has a specialty or area of expertise related
to the impairment(s), and other factors. SSR 06–03p, 2006 WL 2329939, at *4-*5.
After consideration of these factors in light of the record and the ALJ’s decision, Court
finds that the ALJ would likely have given very little weight to the opinions of Mr. Palmer, for
several reasons. First, Mr. Palmer’s opinion was dated nearly five months after the ALJ’s
September 22, 2015 decision that Plaintiff had not been under a disability prior to that date. When
asked on the questionnaire for the earliest date that the descriptions of limitations in the
questionnaire applied, Mr. Palmer responded, “Immediate,” rather than specifying some date in
the past that might have been during the relevant time frame. (Tr. 16). Thus, it is unclear whether
Mr. Palmer was even addressing the issue of Plaintiff’s capabilities during the time period under
consideration by the ALJ.
Second, although Mr. Palmer states that he saw Plaintiff every three to six months, neither
Mr. Palmer nor Plaintiff has identified any records showing Mr. Palmer’s treatment of Plaintiff,
nor has the Court found any in its review of the record. There is also nothing in Mr. Palmer’s
opinion to indicate whether Mr. Palmer reviewed Plaintiff’s medical records in rendering his
opinion. The absence of evidence regarding what kind of treatment relationship (if any) Mr. Palmer
had with Plaintiff, or even what kind of records Mr. Palmer reviewed, make it less likely that the
ALJ would have accorded significant weight to his opinions.
Third, Mr. Palmer does not cite any medical evidence that supports his opinions regarding
Plaintiff’s impairments. When asked to state the clinical findings, laboratory, and test results that
show Plaintiff’s impairments, Mr. Palmer stated only that Plaintiff had an ejection fraction of 60%
on a single date. However, that appears to be a normal result. In treatment notes, Dr. Toniya Singh,
M.D. characterized Plaintiff’s 60% ejection fraction as a “normal left ventricular ejection fraction,”
19
and she discussed this result as part of her assessment that Plaintiff’s chest pain “appears to be
noncardiac.” (Tr. 434). 5 Thus, it appears that the only finding cited by Mr. Palmer actually
undermines, rather than supports, his opinion that Plaintiff has cardiac problems that significantly
limit her ability to function. Plaintiff has not provided any explanation for why an ejection fraction
of 60% provides any support for any of Mr. Palmer’s opinions.
Fourth, Mr. Palmer’s opinions indicating that Plaintiff’s cardiac problems would cause
such significant and ongoing limitations that she would be unable to perform even a reduced range
of sedentary work are not consistent with the medical treatment records. As discussed at length
above, the record contains generally normal examination findings and only intermittent complaints
of symptoms, and those treatment notes are more consistent with the opinions of Dr. Alpern than
with those of Mr. Palmer.
Fifth, the record contains no information regarding Mr. Palmer’s specialty or qualifications
other than that he is a registered nurse. The ALJ credited the opinion of Dr. Alpern in part because
of his credentials as an experienced cardiologist. Particularly in light of the absence of medical
support Mr. Palmer offers for his opinions, it is unlikely that the ALJ would have credited them
over the opinions of the cardiologist who reviewed Plaintiff’s medical records.
Finally, the Court notes that several of Mr. Palmer’s opinions are actually consistent with
the RFC, including the opinion that Plaintiff could sit for at least six hours and stand and/or walk
for less than two hours; the opinion that Plaintiff was capable of performing low-stress jobs; and
the opinion that Plaintiff could lift and carry less than ten pounds frequently and 20 pounds
5
Similarly, Defendant points the Court to an online resource stating that 60% is a normal ejection
fraction. See Def’s Br., Doc. 35, at 9 (citing Mayo Clinic, Ejection fraction: What does it measure?,
https://www.mayoclinic.org/ejection-fraction/expert-answers/faq-20058286 (last visited Nov. 6,
2017) (“An LV [left ventricle] ejection fraction of 55 percent or higher is considered normal.”).
20
occasionally. Thus, even assuming that the ALJ gave some weight to Mr. Palmer’s opinion, it is
not necessarily the case that the RFC assessment would have been different.
For all of the above reasons, the Court finds that the ALJ’s decision is supported by
substantial evidence, even when the opinion of Mr. Palmer is considered. The Court does not find
that the ALJ would have reached a different conclusion had the ALJ had Mr. Palmer’s opinion.
The Court concludes that remand is not required. See Perks, 687 F.3d at 1093-94 (holding that a
treating physician opinion submitted after the ALJ’s decision did not require remand where the
opinion did “not indicate that it [was] supported by clinical or diagnostic data” and where
consideration of the opinion along with the evidence before the ALJ did “not lead to the conclusion
that the ALJ would have reached a different result or that the ALJ’s decision is unsupported by
substantial evidence in the record as a whole”).
VI.
CONCLUSION
For all of the foregoing reasons, the Court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner is AFFIRMED.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 17th day of September, 2018.
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