Cooper v. Astrue
Filing
15
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 11/21/2011 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
GARY COOPER,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
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Case No.
10-5048-CV-SW-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Gary Cooper seeks review of the final decision of
the Commissioner of Social Security denying plaintiff’s
application for disability benefits under Title XVI of the Social
Security Act (“the Act”).
Plaintiff argues that the ALJ erred in
(1) finding that plaintiff’s depression is a non-severe
impairment, (2) finding that plaintiff’s joint impairment does
not meet listing 1.02, (3) failing to follow the methodology to
properly derive a residual functional capacity, and (4) failed to
properly analyze plaintiff’s credibility.
I find that the
substantial evidence in the record as a whole supports the ALJ’s
finding that plaintiff is not disabled.
Therefore, plaintiff’s
motion for summary judgment will be denied and the decision of
the Commissioner will be affirmed.
I.
BACKGROUND
On September 2, 2005, plaintiff applied for disability
benefits alleging that he had been disabled since January 1,
2003.
Plaintiff’s disability stems from club feet, back pain,
and leg pain.
2005.
Plaintiff’s application was denied on December 8,
On October 16, 2007, a hearing was held before an
Administrative Law Judge.
On March 19, 2008, the ALJ found that
plaintiff was not under a “disability” as defined in the Act.
On
June 11, 2010, the Appeals Council denied plaintiff’s request for
review.
Therefore, the decision of the ALJ stands as the final
decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a “final decision” of the Commissioner.
The
standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by
substantial evidence.
42 U.S.C. § 405(g); Richardson v. Perales,
402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th
Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.
1996).
The determination of whether the Commissioner’s decision
is supported by substantial evidence requires review of the
entire record, considering the evidence in support of and in
opposition to the Commissioner’s decision.
Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989).
“The Court must also take into
2
consideration the weight of the evidence in the record and apply
a balancing test to evidence which is contradictory.”
Wilcutts
v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v.
Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla.
It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Richardson v. Perales, 402
U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th
Cir. 1991).
However, the substantial evidence standard
presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts.
“[A]n
administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.”
Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of
proving he is unable to return to past relevant work by reason of
a medically-determinable physical or mental impairment which has
lasted or can be expected to last for a continuous period of not
less than twelve months.
42 U.S.C. § 423(d)(1)(A).
If the
plaintiff establishes that he is unable to return to past
relevant work because of the disability, the burden of persuasion
shifts to the Commissioner to establish that there is some other
3
type of substantial gainful activity in the national economy that
the plaintiff can perform.
Nevland v. Apfel, 204 F.3d 853, 857
(8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo.
2000).
The Social Security Administration has promulgated detailed
regulations setting out a sequential evaluation process to
determine whether a claimant is disabled.
codified at 20 C.F.R. §§ 404.1501, et seq.
These regulations are
The five-step
sequential evaluation process used by the Commissioner is
outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful
activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a
combination of impairments which significantly limits his ability
to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment
in Appendix 1?
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing
past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
4
5.
Does the impairment prevent the claimant from doing any
other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff and
vocational expert Janice Hastert, in addition to documentary
evidence admitted at the hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
The record establishes that plaintiff earned the following
income1 from 1979 through 2007:
1979
TOTAL
$ 3,597.43
1980
TOTAL
$ 2,826.26
1981
TOTAL
$ 1,559.11
1982
TOTAL
$
120.37
1983
TOTAL
$
31.83
1984
TOTAL
$ 1,373.88
1985
TOTAL
$ 1,082.35
1986
TOTAL
$ 6,198.77
1987
TOTAL
$
1
157.45
The earnings records do not include the breakdown of income
from each separate employer until 1989.
5
1988
NO EARNINGS
1989
De Angelis Construction, Inc. $3,617.92
R. Johnson Properties, Inc.
$1,597.25
TOTAL
$ 5,215.17
1990
NO EARNINGS
1991
NO EARNINGS
1992
NO EARNINGS
1993
U-Haul Co. of California
$ 969.08
TOTAL
$
1994
Lane East Apartments
969.08
$2,150.00
TOTAL
$ 2,150.00
NO EARNINGS
1995
1996
Protrades Labor Connection
Gunite Construction, Inc.
$
67.50
$1,535.00
TOTAL
$ 1,602.50
1997
NO EARNINGS
1998
NO EARNINGS
1999
NO EARNINGS
2000
Labor Ready Central, Inc.
Adecco Employment Services
Howroyd Wright Employment
$ 173.39
$ 768.25
$3,089.03
TOTAL
$ 4,030.67
2001
Adecco North America
Landis Priority Personnel
Able Manufacturing
Howroyd Wright Employment
$
75.00
$
26.60
$3,458.28
$ 266.63
TOTAL
$ 3,826.51
6
2002
Able Manufacturing
$4,914.42
TOTAL
$ 4,914.42
2003
Labor Ready Central
$
78.00
TOTAL
$
2004
NO EARNINGS
2005
NO EARNINGS
2006
NO EARNINGS
2007
78.00
NO EARNINGS
(Tr. at 63-71).
Function Report Adult
In a Function Report dated October 2, 2005, plaintiff
reported that a typical day includes getting up, watching
television, eating, doing dishes, vacuuming on some days,
watching more television, and going to bed (Tr. at 121-128).
He
lives alone in a house and has no difficulty with personal care.
Before his alleged onset date, plaintiff could work, walk and
stand longer, “hunt [and] fish” (Tr. at 122).
his own meals.
He prepares all of
He leaves his home once or twice a week but does
not drive because he does not have a license.
stores and is able to go out alone.
television “all day”.
He can shop in
He reported that he watches
He goes to church once a week and visits
with people on the phone.
7
When asked what items his conditions affect, he circled
standing, walking and stair climbing.
He did not circle lifting,
squatting, bending, reaching, sitting, kneeling, talking,
hearing, seeing, memory, completing tasks, concentration,
understanding, following instructions, using his hands, or
getting along with others.
He has no problem paying attention,
starts what he finishes, follows instructions well, gets along
fine with authority figures, handles stress ok, and handles
changes in routine ok.
He reported that he uses a cane but that
no doctor prescribed it for him.
B.
SUMMARY OF MEDICAL RECORDS
On August 28, 2000, plaintiff sprained his right ankle.
On
September 18, 2000, an x-ray was taken of plaintiff’s right ankle
at Freeman Health System (Tr. at 213).
The imaging revealed
diffuse degenerative osteoarthritic changes of the right ankle
which had not changed significantly since August 29, 2000, but
was negative for evidence of a fracture (Tr. at 213).
Gary
Brandon, D.O., with the Occupational Health Clinic noted, “We rex-rayed and there is no evidence of occult fracture.2
just have a nasty looking right foot.
2
He does
He admits that he fell off
A fracture that cannot be detected by radiographic standard
examination until several weeks after injury. The fracture is
accompanied by the usual signs of pain and trauma and may produce
soft tissue swelling. MRI or a bone scan may be used to confirm
a suspected occult fracture.
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a roof 3 years ago and broke his foot in 5 different places and
it certainly appears that way when you look at the x-ray.” (Tr.
at 218).
On March 6, 2001, plaintiff reported to the St. John’s
Regional Medical Center Emergency Department reporting pain
shooting down his left neck from his head to his left arm (Tr. at
He was given IV Toradol,3 which he said helped a little
322).
bit.
Blood work was done and an EKG was done.
No assessment was
made.
On June 15, 2001, plaintiff was admitted to St. John’s
Regional Medical Center after reporting unstable chest pain
radiating to the left arm and neck (Tr. at 307).
A chest x-ray
was shown to be unremarkable (Tr. at 307).
An electrocardiogram
revealed a sinus bradycardia4 (Tr at 307).
After evaluation he
was discharged with a diagnoses of probable gastroesophageal
reflux disease secondary to stress environment; tobacco abuse;
and probable cervical radiculopathy (Tr. at 307).
On July 2, 2001, plaintiff reported to Freeman Health System
and reported right sided chest pain and neck pain that had been
steady for the prior two weeks (Tr. at 205).
the pain varied in intensity.
He reported that
He was taking no over-the-counter
3
Non-steroidal anti-inflammatory.
4
Heart rate of less than 60 beats per minute.
9
medications.
Plaintiff was diagnosed with chest pain and was
given samples of Ultram, a narcotic-like pain reliever.
On July 25, 2001, plaintiff reported to Freeman Health
System and reported dizziness (Tr. at 202).
A CT scan was
performed which indicated that plaintiff suffered from mild
chronic sinus infection, but no acute intracranial findings were
observed (Tr. at 203).
On November 30, 2001, plaintiff reported to St. John’s
Regional Medical Center due to an injury to his right foot (Tr.
at 286–290).
“Boat rolled over it 2 weeks ago.
Again tonight.”
He had mild right foot pain and minimal dysfunction.
examination was normal other than some swelling.
His
An x-ray was
taken of his foot which showed no fracture, dislocation or other
osseous (bone) abnormality except for degenerative changes
primarily at the talonavicular articulation5 (Tr. at 290).
Plaintiff was diagnosed with a foot contusion (bruise),
prescribed Motrin (non-steroidal anti-inflammatory), and
discharged home (Tr. at 289).
5
10
January 1, 2003, is plaintiff’s alleged onset date.
On June 26, 2003, a year and seven months after his last
visit, plaintiff returned to St. John’s Regional Medical Center
due to right shoulder pain (Tr. at 260-263).
He had no shoulder
dysfunction, no musculoskeletal symptoms, no neurological
symptoms, normal range of motion, and his right shoulder exam was
in all respects normal (Tr. at 262).
were also normal.
Plaintiff’s heart and lungs
He was assessed with “rotator cuff syndrome
not otherwise specified” and was given Skelaxin (muscle relaxer)
and Motrin (non-steroidal anti-inflammatory.
On September 10, 2003, plaintiff reported to St. John’s
Regional Medical Center because of swelling in his hands and feet
for the past seven days (Tr. at 250–254).
Edema was noted in his
hands and feet, but he had normal range of motion, no chest pain,
no shortness of breath, no history of similar symptoms, no
cardiac risk factors, and all other systems were normal.
Plaintiff’s heart rate was 66 and his blood work was normal
except his sugar was high at 120 (normal is 100).
An x-ray was
taken of plaintiff’s chest which indicated cardiomegaly (enlarged
heart) and mild chronic lung changes without an acute process
(Tr. at 254).
Plaintiff was prescribed a diuretic.
More than
two and a half years would pass before plaintiff saw a doctor
11
again for treatment as opposed to evaluation for disability
benefits.
On April 13, 2004, plaintiff reported to John B. Freitas,
D.O., for an evaluation at the request of the Department of
Social Services (Tr. at 155).
Plaintiff complained of bilateral
clubbed feet and several fractures of his right foot.
Two years
earlier he settled a worker’s compensation claim after he
fractured his foot on the job.
Plaintiff complained of
difficulty breathing due to his weight and difficulty losing
weight.
exam.
Plaintiff was taking no medications at the time of this
Plaintiff was 5’ 11” tall and weighed 435 pounds.
Dr.
Freitas assessed clubbed feet with multiple traumas on the right
foot and significant morbid obesity (Tr. at 156).
He concluded
his report as follows:
Mr. Cooper is a morbidly obese male with congenital clubfoot
deformity, which has been surgically corrected. He has
experienced some additional trauma to that foot, which has
somewhat impaired his gait. He does have normal
functionality other than difficulty with his gait and the
fact that his obesity encouraged him with some exertional
dyspnea [shortness of breath]. He does have some functional
limitations regarding gait and prolonged standing as well as
running and climbing. He is not impaired from working, job
requiring limited standing, limited walking, or prolonged
sitting. He would also gain benefit from a weight reduction
program.
On May 26, 2004, plaintiff reported to Freeman Health System
for an x-ray of his right ankle and foot in connection with his
application for disability benefits (Tr. at 159).
12
The x-ray
indicated that he had a healed calcaneus (heel bone) fracture and
osteoarthritis in his right foot and ankle (Tr. at 159).
On October 31, 2005, plaintiff reported to S. Subramanian,
M.D., for a consultative examination at the request of Disability
Determinations (Tr. at 164-169).
CHIEF COMPLAINT: Severe pain, difficulty walking on his
right foot, history of multiple surgeries for clubfoot,
history of shortness of breath, cough, morbid obesity. . . .
PERSONAL HISTORY: He has been smoking for 28 years. He has
smoked one and a half pack[s] of cigarettes a day and has
been cutting back to 1/2 pack a day for the last year or so.
* * * * *
CURRENT MEDICATIONS:
medicine now.
He is not taking any prescription
Plaintiff walked with a limp favoring the right side.
He
had a marked decrease in range of motion of both knee joints and
right ankle joint.
Dr. Subramanian assessed history of club
foot, morbid obesity, chronic obstructive airway disease, tobacco
abuse, chronic reflux disease, and unable to rule out sleep
apnea.
He concluded:
The patient does not seem to have any disability in sitting,
standing, handling objects, hearing, speaking or traveling,
however, because of his multiple problems mentioned above he
has disability in lifting, carrying and walking long
distance. He may not be able to be gainfully employed.
13
Plaintiff’s shoulder flexion6 was 120E on the right and left
(normal is 180E); shoulder abduction7 was 120E on both the right
and the left with 180E being normal and adduction was normal on
both sides at 50E.
Knee flexion/extension8 was 100E on the right
6
7
8
14
and 130E on the left with 150E being normal.
80E bilaterally with 100E being normal.
Hip flexion9 was
The rest of plaintiff’s
range of motion values were essentially normal.
On November 29, 2005, x-rays were taken of plaintiff’s
knees; they were normal (Tr. at 176).
On April 30, 2006, Cooper reported to St. John’s Regional
Medical Center in Joplin, Missouri, because of back pain (Tr. at
235).
Notes indicated that plaintiff was too large to x-ray, as
there was a 350 pound weight limit.
He was assessed with
obesity, a back ache not otherwise specified, and a strain in the
lumbar region.
He was given Flexeril (a muscle relaxer) and
Darvocet (a narcotic pain reliever that was withdrawn from the
U.S. market in November 2010).
On October 25, 2006, plaintiff was seen at St. John’s
Regional Medical Center complaining of right foot, hip and back
pain (Tr. at 359-365).
his foot.
Plaintiff had normal range of motion in
Ankle x-rays were normal except mild degenerative
changes in the midfoot.
Hip x-rays were normal.
9
15
He was assessed
with ankle sprain not otherwise specified and right hip pain.
He
was told to apply ice.
On August 25, 2007, plaintiff reported to Ron M. Gann, D.O.,
for a consultative examination (Tr. at 366-377).
CHIEF COMPLAINT:
Right foot pain.
HISTORY OF PRESENT ILLNESS: The claimant is a 46-year-old
white male who comes in complaining of problems with walking
on the right foot due to a previous history of having
clubbed foot. He feels that it is starting to turn in on
him the more he walks causing him significant pain in his
right ankle, and right knee he states he is unable to
perform any type of job adequately with this problem. . . .
He comes in because he has no way of income and no way of
acquiring insurance.
PAST MEDICAL HISTORY: He has had problems in the past with
edema but has not been diagnosed with anything and has not
seen a physician in some time. He does have ongoing problem
with severe obesity.
PAST SURGICAL HISTORY: In 1966 multiple surgeries to repair
right leg with the clubbed foot. In 1968 repair of a broken
jaw.
MEDICATIONS:
None.
* * * * *
SOCIAL HISTORY/HABITS: Unemployed. Single. Smokes one pack
per day for the past 20 years. Denies any alcohol or
illegal drug use. Typical daily activity mostly sitting
around the house, maybe cooking some for himself.
* * * * *
REVIEW OF SYSTEMS: Complains this time of weight gain,
rash, headaches, lightheadedness, vision change, deafness,
chest pains which come and go which he states he experienced
earlier today. When seen he does not have any chest pain,
dyspnea [shortness of breath], edema [swelling], heart
murmurs, leg pain with walking Pain with breathing,
16
abdominal pain, heartburn, nausea, vomiting, diarrhea,
painful urination, joint swelling, muscular weakness and
cramps in muscles, numbness and tingling, difficulty with
memory and muscular coordination and problems with emotional
problems.
Plaintiff’s heart rate was 76, he was six feet tall and
weighed 480 pounds.
uncorrected.
time.
His visual acuity was 20/70 in both eyes
He was alert and oriented to person, place and
His heart and lungs were normal; he had no edema in his
extremities.
Musculoskeletal: No decreased range of motion in any major
muscle group or joint but significant tenderness in the
right knee with full extension of the knee. Decreased ROM
in right ankle at 7% of right ankle in al directions. Also
has severe tenderness to palpation in the lower lumbar with
pain felt with motion in all directions of the back.
Strength appears to be appropriate at 5/5 in all major
muscle groups or joints. Straight leg raising appears to be
negative in the supine and seating position. Had difficulty
getting in the supine position because of his severe
obesity.
Neurologic:
General: No decreased sensation to touch in any major
areas, deep tendon reflexes appear to be depressed and
nonexistent in the lower extremities with maybe at best at
1/4 in the upper extremities.
Cranial nerves: II through XII grossly intact.
Cerebullar: Unable to walk on heels or toes due to pain in
right leg and lack of strength in doing the maneuver in the
right leg. Able to stand with eyes closed without any
problems.
Gait: Speed is slow. Stability is fair. Safety is fair.
When walking he had a moderate limp on the right leg.
ASSESSMENT:
1.
Severe morbid obesity.
2.
Right leg pain with a history of clubfoot with
continued limping when walking.
3.
Psoriasis [skin rash] in the left anterior lower leg.
17
Dr. Gann also completed a Medical Source Statement
indicating that plaintiff could occasionally lift up to ten
pounds; sit for two hours at one time without interruptions; sit
for a total of two hours in an eight-hour workday; stand 15
minutes at one time with the need to rest for 30 minutes
afterward; and walk for ten minutes at one time with the need to
rest for 30 minutes after walking (Tr. at 372, 435).
Dr. Gann
indicated that plaintiff did not need to use a cane for
ambulating.
He found that plaintiff could reach in all
directions and overhead continuously and that he could
continuously handle, finger, feel, push or pull.
Dr. Gann found
that plaintiff could only occasionally use his feet for operation
of foot controls and that he could occasionally climb stairs and
ramps, balance, stoop, kneel, and crouch (Tr. at 375).
However,
plaintiff could never crawl or climb ladders or scaffolds (Tr. at
375).
Dr. Gann found that plaintiff could only occasionally be
exposed to unprotected heights, moving mechanical parts,
operating a motor vehicle, humidity, wetness, dust, odors, fumes,
pulmonary irritants, and extreme heat (Tr. at 376).
He found
that plaintiff could not walk a block at a reasonable pace on
rough or uneven surfaces; use standard public transportation; or
climb a few steps at a reasonable pace with the use of a single
hand rail (Tr. at 377).
He found, however, that plaintiff could
18
perform activities like shopping.
He had no problems with
personal hygiene and could sort, handle, or use papers and files.
On August 27, 2007, plaintiff reported to the Freeman Health
System Emergency Room complaining of chest pain and shortness of
breath intermittently over the past several days (Tr. at 378413).
This is a morbidly obese over 450 lb gentleman who was
admitted after a syncopal [fainting] episode. Patient
apparently fell down without any warning signs, an he
reported that he was out for about 3 hours. patient had,
upon initial evaluation, a normal EKG and normal cardiac
enzymes. Ischemia10 was ruled out A CT scan of the head
was negative. patient did not have any further episodes of
syncope in the hospital.
On the telemetry he had some bradycardia [heart rate lower
than 60] with a heart rate in the 50s and high 40s. He is
being sent home on an event monitor to make sure that he
does not have a bradyarrhythmia as an etiology of his
syncope. Patient was counselled [sic] in detail that
sometimes we may not be able to find out an etiology of
syncope, although life threatening conditions like
intracranial lesions and coronary ischemia have been ruled
out in his case. Apparently keeping in view his story of
sudden passing out without any warning sign with no
weakness, numbness or tingling, I do not believe that this
patient could have any problem with his carotid arteries
which we did not examine during his hospital stay.
Patient also, upon admission, was reporting chest pain which
was exertional radiating to neck and the arm. His EKG and
cardiac enzymes were all within normal limits. A nuclear
stress test was done on the patient which was slightly
suboptimal because of his body habitus, but it did not show
any signs of reversible ischemia, and his EF [ejection
10
Inadequate blood supply (circulation) to a local area due
to blockage of the blood vessels to the area.
19
fraction] was 70% on that.11
Patient is morbidly obese, and he was counselled [sic] about
his risk of developing coronary artery disease, diabetes,
and multiple other problems because of his obesity. . . .
Patient also is having history suggestive of obstructive
sleep apnea. Again, he was counselled [sic] about getting
an appointment for sleep study. Apparently he does not have
insurance . . . We will try to arrange through Social
Services if possible.
On more than one occasion that patient’s fasting blood sugar
was over 126 in the hospital. This could be stress related
too, but keeping in view his obesity and risk factor for
diabetes, he is being started on ADA diet. . . .
Plaintiff was told to take one baby aspirin per day, but was
given no other medications.
He was also told to follow the
1,800-calorie-per-day ADA diet.
On September 13, 2007, plaintiff reported to the emergency
room at Freeman Health System because of pain that radiated from
his neck down to his shoulder into his hand (Tr. at 425-426).
This had begun three days earlier.
no shortness of breath.
Plaintiff had no chest pain,
Plaintiff had “a little bit of pain” on
11
Ejection fraction is a measurement of the percentage of
blood leaving the heart each time it contracts. During each
heartbeat cycle, the heart contracts and relaxes. When the heart
contracts, it ejects blood from the two pumping chambers
(ventricles). When the heart relaxes, the ventricles refill with
blood. No matter how forceful the contraction, it does not empty
all of the blood out of a ventricle. The term “ejection fraction”
refers to the percentage of blood that is pumped out of a filled
ventricle with each heartbeat. Because the left ventricle is the
heart’s main pumping chamber, ejection fraction is usually
measured only in the left ventricle (LV). A normal LV ejection
fraction is 55 to 70 percent.
20
palpating his left shoulder and left arm.
normal.
Mood and affect were
X-rays showed that the disk between C3 and 4 was
“virtually nonexistent
Has really no disk space there.”
Plaintiff was told to follow up with his doctor and get an MRI to
determine what was causing this.
In November 2007, Dr. Gann was asked for clarification of
the Medical Source Statement he completed a few months earlier in
which he had found that plaintiff could stand and walk for 15 and
10 minutes at a time respectively, and for 15 and 10 minutes
total in an eight-hour work day (Tr. at 434-435).
Dr. Gann
indicated that in his opinion, although plaintiff could stand for
no more than 15 minutes at a time, he could stand for three hours
total per work day, and that although plaintiff could walk for
only ten minutes at a time, he could walk for a total of two
hours per work day (Tr. at 435).
In his explanation, he wrote,
“[H]e can only stand for 3 hours & 25 minutes at the most through
a [sic] 8 hour work day”.
C.
SUMMARY OF TESTIMONY
During the October 16, 2007, hearing, plaintiff testified;
and Janice Hastert, a vocational expert, testified at the request
of the ALJ.
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1.
Plaintiff’s testimony.
At the time of the hearing, plaintiff was 46 years of age
and is currently 50 (Tr. at 442).
He was six feet tall and
weighed approximately 488 pounds (Tr. at 442-443).
Plaintiff was
not married, but he had four children ranging in ages from 18 to
26 (Tr. at 443).
Although plaintiff stated in his administrative paperwork
that he lived alone in a house, by the time of the hearing he was
“skating from family member to family member” (Tr. at 443).
He
receives food stamps but no other means of support (Tr. at 445).
He went to school through 12th grade but he got a GED (Tr. at
443).
Plaintiffs only full-time job for three months or more since
1990 was for Able Body (Tr. at 444).
He took molds out of the
frame for a company that did fiberglass work for jet skis (Tr. at
444).
Plaintiff worked full time for seven or eight months
before he was laid off (Tr. at 444).
When asked why he had a lot
of years with no earnings, he said, “probably construction work,
Ma’am” indicating he worked full time when he did construction
work; however, he never answered the question of why he had no
earnings (Tr. at 444).
When plaintiff was in his 20s, he had two DUI convictions
(Tr. at 445).
Plaintiff has not had a drivers license since
22
approximately 1999 due to failure to pay child support (Tr. at
445).
He tried to get it reinstated about three or four years
before the hearing, but he was told he would have to contact
California and he has not had the “means” to do that (Tr. at
445).
Plaintiff was asked what his worst problem is, and he said
his right leg (Tr. at 446).
(Tr. at 446).
Plaintiff was born with a club food
He had to wear braces (Tr. at 446).
It was ok for
a while but he said it was currently getting worse (Tr. at 446).
His foot turns in, causes him to fall, and causes his back to
hurt (Tr. at 446).
He is not being treated for his foot; he goes
to the emergency room for a pain shot when it gets bad (Tr. at
446).
His next worse problem is pain in his shoulder and neck (Tr.
at 446).
He goes to the emergency room for steroids and pain
pills (Tr. at 447).
Plaintiff also is depressed but has not
obtained any treatment (Tr. at 447).
He claimed he had no funds
for treatment but he has not utilized free treatment options (Tr.
at 447).
Plaintiff had two hospital visits the week before the
hearing (Tr. at 441-442).
His neck and shoulder were hurting, he
had x-rays taken, and he was advised that the disks in his neck
are “gone” (Tr. at 442).
23
In a typical day, plaintiff watches television all day (Tr.
at 447).
Plaintiff stated he cannot work because he cannot sit
for very long or his back and leg hurt and his neck and shoulder
cause him pain (Tr. at 448).
Plaintiff’s obesity causes breathing difficulty when he
tries to walk very far (Tr. at 448).
He becomes dizzy and
lightheaded when he tries to walk (Tr. at 448).
He cannot bend
very well; he cannot stoop and needs someone to put his shoes on
for him (Tr. at 448-449).
Plaintiff’s neck hurts constantly; his
left arm hurts if he even bumps it; and his low back hurts all
the time with pain radiating to his right hip (Tr. at 449).
If
he walks on his right foot and ankle, it hurts all day (Tr. at
449).
Plaintiff’s right leg swells all the time, and the only
thing that alleviates the swelling is t stay off his feet (Tr. at
449-450).
Plaintiff has to elevate his leg for hours each day
(Tr. at 450).
This helps with the swelling, but not with the
pain (Tr. at 450).
Plaintiff is tired all the time and he cries
all the time for no reason (Tr. at 451).
He cannot concentrate
and he is upset all the time (Tr. at 451).
2.
Vocational expert testimony.
Vocational expert Janice Hastert testified at the request of
the Administrative Law Judge.
The first hypothetical involved a
person who could do light work who could never climb ladders,
24
ropes or scaffolding; never crawl, balance, or crouch; could
occasionally climb, stoop, kneel, and use foot controls; and is
limited to simple, routine work (Tr. at 452).
The vocational
expert testified that such a person could perform plaintiff’s
past relevant work as a mold preparer (Tr. at 452).
The next hypothetical was the same as the first but limited
the person to standing or walking three hours per day, could only
occasionally reach overhead, and needed a sit/stand option (Tr.
at 452).
The vocational expert testified that the person could
not do plaintiff’s past relevant work but could work as a photo
finisher, with 55,000 in the nation; a pager, with 15,000 in the
nation; or a wire wrapper, with 34,000 in the nation (Tr. at
453).
Those jobs are sedentary jobs (Tr. at 453).
The next hypothetical limited the person to occasional use
of the non-dominant left arm (i.e., reaching, handling,
fingering) (Tr. at 453).
The vocational expert testified that
the person could still do those three jobs (Tr. at 454).
The next hypothetical involved a person who could stand only
15 minutes and walk only ten minutes total per day (Tr. at 455).
The vocational expert testified that the person could not work
(Tr. at 455).
25
V.
FINDINGS OF THE ALJ
Administrative Law Judge Linda Sybrant entered her opinion
on March 19, 2008 (Tr. at 14-21).
Step one.
Plaintiff has not engaged in substantial gainful
activity since his alleged onset date (Tr. at 16).
Step two.
Plaintiff has the following severe impairments:
morbid obesity, neck pain with status post fusion at C3-4 with
degenerative change at C4-5, and history of club foot on the
right with leg pain (Tr. at 16).
Plaintiff’s depression is not a
severe impairment (Tr. at 16).
Step three.
“The claimant has not presented evidence or
argued that he meets or equals a listing.
he has not satisfied it.”
Step four.
The burden is his and
(Tr. at 18).
Plaintiff retains the residual functional
capacity to perform sedentary work with no use of ladders, ropes
or scaffolds; occasional climbing, stooping and kneeling; no
crawling, balancing or crouching; occasional use of foot controls
bilaterally; and occasional overhead reaching (Tr. at 18).
With
this residual functional capacity, plaintiff is unable to perform
his past relevant work (Tr. at 19).
Step five.
Plaintiff can work as a photo finisher, pager,
or wire wrapper (Tr. at 20).
Therefore, plaintiff is not
disabled (Tr. at 20).
26
VI.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that
plaintiff’s testimony was not credible.
A.
CONSIDERATION OF RELEVANT FACTORS
The credibility of a plaintiff’s subjective testimony is
primarily for the Commissioner to decide, not the courts.
v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988);
830 F.2d 878, 882 (8th Cir. 1987).
Rautio
Benskin v. Bowen,
If there are inconsistencies
in the record as a whole, the ALJ may discount subjective
complaints.
Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999);
McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993).
The ALJ,
however, must make express credibility determinations and set
forth the inconsistencies which led to his or her conclusions.
Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995); Robinson v.
Sullivan, 956 F.2d 836, 839 (8th Cir. 1992).
If an ALJ
explicitly discredits testimony and gives legally sufficient
reasons for doing so, the court will defer to the ALJ’s judgment
unless it is not supported by substantial evidence on the record
as a whole.
Robinson v. Sullivan, 956 F.2d at 841.
In this case, I find that the ALJ’s decision to discredit
plaintiff’s subjective complaints is supported by substantial
evidence.
Subjective complaints may not be evaluated solely on
the basis of objective medical evidence or personal observations
27
by the ALJ.
In determining credibility, consideration must be
given to all relevant factors, including plaintiff’s prior work
record and observations by third parties and treating and
examining physicians relating to such matters as plaintiff’s
daily activities; the duration, frequency, and intensity of the
symptoms; precipitating and aggravating factors; dosage,
effectiveness, and side effects of medication; and functional
restrictions.
1984).
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
Social Security Ruling 96-7p encompasses the same factors
as those enumerated in the Polaski opinion, and additionally
states that the following factors should be considered:
Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; and any measures
other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a
board).
The specific reasons listed by the ALJ for discrediting
plaintiff’s subjective complaints of disability are as follows:
The claimant testified he cries all the time, but there is
no evidence that he receives any kind of mental health
treatment. He said that he weighs about 488 pounds and
stopped working in 2002 because he was laid off from a
construction job. The claimant testified he had a couple of
DUIs in 1999 or 2000. His driver’s license was confiscated
because he defaulted on child support payments in the state
of California. The claimant testified he receives food
28
stamps and financial support from his mother and two
sisters. He alleges quite restrictive activities of daily
living, essentially spending his time either sitting or
lying down watching television.
The undersigned does not find the claimant credible when he
claims he is totally disabled. His earnings record reflects
many years of no earnings and at best minimal amounts
earned. That he has little to no earnings over his work
life shows that he is not motivated to work. Certainly, the
claimant has significant limitations, but those limitations
are recognized in the residual functional capacity assessed.
The medical evidence, including two consultative
examinations during the pertinent time frame, supports that
residual functional capacity. Accordingly, the undersigned
concludes that claimant’s allegations and testimony
concerning the extent, intensity, persistence and limiting
effects of his impairments are not entirely credible.
(Tr. at 19).
Credibility questions concerning a plaintiff’s subjective
testimony are “primarily for the ALJ to decide, not the courts.
Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003).
When the
ALJ articulates the inconsistencies that undermine the claimant’s
subjective complaints, and when those inconsistencies are
supported by the record, the credibility determination should be
affirmed.
Eichelberger v. Barhart, 390 F.3d 584, 590 (8th Cir.
2004) (“We will not substitute our opinion for that of the ALJ,
who is in a better position to assess credibility”); Baldwin v.
Barnhart, 349 F.3d at 558.
Such is the case here.
Plaintiff argues that the ALJ failed to cite any
inconsistencies to discredit his allegations.
However, the ALJ’s
opinion makes clear that she properly considered inconsistencies
29
between plaintiff’s subjective allegations and the objective
medical evidence.
Ramirez v. Barnhart, 292 F.3d 576, 581 (8th
Cir. 2002) (“[A]n ALJ is entitled to make a factual determination
that a Claimant’s subjective pain complaints are not credible in
light of objective medical evidence to the contrary”).
As part
of her credibility analysis, the ALJ stated the following:
The medical evidence, including two consultative
examinations during the pertinent timeframe, supports that
residual functional capacity [that the ALJ formulated].
Accordingly, the undersigned concludes that claimant’s
allegations and testimony concerning the extent, intensity,
persistence and limiting effects of his impairments are not
entirely credible.
In finding that the medical evidence supports her
formulation of plaintiff’s residual functional capacity, the ALJ
implicitly found that plaintiff’s allegations were not credible
to the extent that they were inconsistent with that residual
functional capacity.
In turn, the ALJ implicitly discredited
plaintiff’s allegations because they were not consistent with the
objective medical evidence.
Reynolds v. Chater, 82 F.3d 254, 258
(8th Cir. 1996) (holding that although the ALJ did not
specifically outline reasons for rejecting the witness’s
testimony, it was clear from the record that the ALJ made certain
implicit determinations regarding credibility, which were
supported by substantial evidence).
30
The ALJ thoroughly discussed the medical evidence following
her finding of plaintiff’s severe impairments.
The medical
evidence showed that plaintiff’s congenital deformity of club
feet had been mostly surgically corrected.
Plaintiff had some
lingering problems with his right foot and ankle, but he was able
to walk with at most a moderate limp.
antalgic.
His gait was only mildly
X-rays revealed only osteoarthritis and mild
degenerative changes in his right foot.
In addition, the
treatment records reveal limited treatment of plaintiff’s right
foot.
When Plaintiff reported to the emergency room with right
foot pain in October 2006, his foot was mildly tender with normal
range of motion.
Plaintiff was diagnosed with only an ankle
sprain and prescribed medication, and he was told to ice the
injury.
The treatment notes show that plaintiff’s reports of
other physical impairments were mostly isolated and never
resulted in significant objective findings.
lower back pain in April 2006.
Plaintiff reported
However, a physical examination
was unremarkable, and his treatment was limited to muscle
relaxers and pain medication.
Plaintiff testified that
his shoulder and neck “hurt all the time.”
However, the record
shows that plaintiff’s only treatment for back pain was one
emergency room visit.
An x-ray showed fusion at C3-4 with
degenerative changes at C4-5, but no evidence of fracture.
31
Plaintiff alleged problems with his knees, but x-rays showed no
abnormalities.
Finally, on multiple occasions plaintiff reported
chest pain and shortness of breath, but x-rays and other testing
failed to show any abnormalities and it was generally found that
his issues were related to his smoking and his morbid obesity.
“As is often true in disability cases, the question [is] not
whether [the plaintiff] was experiencing pain, but rather the
severity of [his] pain.”
Cir. 2001).
Hogan v. Apfel, 239 F.3d 958, 961 (8th
Physical examinations during plaintiff’s various
emergency room visits were unremarkable.
None of the examining
doctors ever imposed any restrictions on plaintiff’s activities.
Vanderboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (an ALJ
may consider that the claimant’s treating doctors did not impose
the restrictions which the claimant alleged he had).
Plaintiff
reported in October 2005 that he did not regularly take any
prescription medications but took some over-the-counter pain
medication.
pain.
On other visits he reported taking nothing for his
The ALJ may properly rely on these facts.
See 20 C.F.R. §
416.929(c)(3)(iv) (noting that in evaluating the claimant’s
symptoms, such as pain, the ALJ considers the type of any
medication).
Plaintiff’s reported activities of daily living were
limited; however, the evidence suggests that the limitations were
32
by choice rather than due to any physical impairment.
Aside from
spending most of his day lying around watching television,
plaintiff had no problems with personal care.
own meals daily.
He prepared his
When he completed his disability application,
he was living alone in a house.
He vacuumed, dusted, and washed
dishes.
Allegations of disability “may be discredited by evidence of
daily activities inconsistent with such allegations.”
Davis v.
Apfel, 239 F.3d 962, 967 (8th Cir. 2001), citing Benskin v.
Bowen, 830 F.2d 878, 883 (8th Cir. 1987).
In addition to the medical evidence, the ALJ also explicitly
considered plaintiff’s work history, which shows extremely low
earnings during the years before his alleged onset date.
Plaintiff went many years with no earnings whatsoever.
He has
earned more than $4,000 per year during only four years of his
entire life.
The most he has ever earned in a year is $6,198.77.
Even during years when plaintiff had earned income, it was often
from multiple employers indicating that he was not motivated to
stay with one company for any length of time. Plaintiff’s
earnings record establishes that he has had very little
motivation to work during his entire life.
The ALJ is entitled
to rely on this fact since it contradicts plaintiff’s current
allegation that he would be working but for his impairments.
33
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (“a
lack of work history may indicate a lack of motivation to work
rather than a lack of ability”).
Based on all of the above, I find that the ALJ properly
found plaintiff’s subjective allegations of disability not
credible.
VII. DEPRESSION AS NON-SEVERE IMPAIRMENT
Plaintiff argues that the ALJ erred in finding that
plaintiff’s depression is not a severe impairment and
specifically that the ALJ erred in failing to order a
consultative examination in order to fully develop the record in
regard to plaintiff’s depression.
A severe impairment is an impairment or combination of
impairments which significantly limits a claimant’s physical or
mental ability to perform basic work activities without regard to
age, education, or work experience.
20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).
The regulations, at 20 C.F.R. § 404.1521, define a nonsevere impairment.
(a) Non-severe impairment(s). An impairment or
combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do
basic work activities.
34
(b) Basic work activities. When we talk about basic
work activities, we mean the abilities and aptitudes
necessary to do most jobs. Examples of these include-(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2)
Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering
simple instructions;
(4)
Use of judgment;
(5) Responding appropriately to supervision, coworkers and usual work situations; and
(6)
setting.
Dealing with changes in a routine work
20 C.F.R. § 404.1512(f) states, “If te information we need
is not readily available from the records of y our medical
treatment source, or we are unable to seek clarification from
your medical source, we will ask you to attend one or more
consultative examinations at our expense.”
The ALJ bears a
responsibility to develop the record fairly and fully,
independent of the claimant’s burden to press his case.
Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004); Battles v. Shalala,
36 F.3d 43, 44 (8th Cir. 1994).
The only evidence in the record that plaintiff suffered from
depression, concentration problems, and crying spells is his
hearing testimony.
Plaintiff has cited not one medical record in
which plaintiff hinted at any mental difficulties, and not one
35
doctor ever observed even the slightest symptom of depression or
concentration difficulties.
The regulations require the ALJ to
order a consultative examination if she does not already have the
information she needs in the records to make a decision.
The
records do not require an ALJ to order a consultative examination
of every possible impairment a claimant may throw into his
hearing testimony in an attempt to secure benefits.
In this case, the medical records provided the ALJ with the
information she needed to determine that any mental impairment
suffered by plaintiff was so minor as to never have resulted in
any mention of it by plaintiff or any medical person to ever have
come in contact with plaintiff -- he never complained of
depression, crying, or an inability to concentrate, and no
medical or clerical person during any doctor or hospital visit
ever observed any symptom of depression or concentration
difficulty.
Plaintiff’s allegation that a lack of funds kept him
from seeking treatment is not credible.
Plaintiff was able to
come up with the money to smoke a pack of cigarettes a day during
the seven years covered by these medical records.
Additionally,
when he did see doctors for his physical impairments, he could
have mentioned his depression in order to obtain the most
treatment possible from each visit.
This he did not do.
was not required to order a consultative exam.
36
The ALJ
The evidence in the record establishes that plaintiff’s
ability to perform basic work activities was not limited by his
alleged depression.
The ALJ did not err in finding his mental
impairment non-severe.
VIII. LISTED IMPAIRMENT
Plaintiff argues that the ALJ erred in finding that
plaintiff’s combined impairments do not meet or equal a listed
impairment.
“Although it is preferable that ALJs address a
specific listing, failure to do so is not reversible error if the
record supports the overall conclusion”.
Pepper o/b/o Gardner v.
Barnhart, 342 F.3d 853, 855 (8th Cir. 2003).
Plaintiff argues that the ALJ should have affirmatively
considered whether his impairments met or equaled the criteria of
Listing § 1.02.
Plaintiff has the burden of providing medical
evidence that his impairments “meet all of the specified medical
criteria” contained in Listing § 1.02.
Sullivan v. Zebley, 493
U.S. 521, 530 (1990); Carlson v. Astrue, 604 F.3d 589, 593 (8th
Cir. 2010); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.
2004).
Listing § 1.02 requires that the claimant show:
Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs
of limitation of motion or other abnormal motion of the
affected joint (s), and findings on appropriate medically
acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
37
A.
Involvement of one major peripheral weightbearing joint (e.g., hip, knee, or ankle), resulting in
inability to ambulate effectively . . .
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.
The inability to ambulate effectively is further defined as:
(1) . . . [A]n extreme limitation of the ability to
walk; i.e., an impairment(s) that interferes very seriously
with the individual’s ability to independently initiate,
sustain, or complete activities. Ineffective ambulation is
defined generally as having insufficient lower extremity
functioning . . . to permit independent ambulation without
the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.
(2) To ambulate effectively, individuals must be
capable of sustaining a reasonable walking pace over a
sufficient distance to be able to carry out activities of
daily living. They must have the ability to travel without
companion assistance to and from a place of employment or
school. Therefore, examples of ineffective ambulation
include . . . the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a
block at a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such
as shopping and banking, and the inability to climb a few
steps at a reasonable pace with the use of a single hand
rail.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(B)(2)(b) (emphasis
added).
Plaintiff does not provide medical evidence to meet several
of the criteria of Listing § 1.02A.
major dysfunction of a joint.
Plaintiff does not allege
He cites his diagnosis of club
feet, but he fails to allege a particular joint that is subject
to major dysfunction.
Plaintiff also cites no “findings on
38
appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis.”
Plaintiff cites x-
rays of his right foot, which show only degenerative changes of
the tarsal bones.
X-rays of plaintiff’s knees, hip, and pelvis
also fail to show joint space narrowing, bony destruction, or
anklylosis.
Plaintiff further fails to show that he was unable to
ambulate effectively, i.e., that he had an “extreme limitation of
the ability to walk.”
§ 1.00(B)(2)(b).
walk with a limp.
See 20 C.F.R. pt. 404, subpt. P, app. 1,
The record shows that plaintiff was able to
In his function report, plaintiff stated that
he was able to go out alone, which means he had “the ability to
travel without companion assistance to and from a place of
employment.”
See 20 C.F.R. pt. 404, subpt. P, app. 1, §
1.00(B)(2)(b).
Plaintiff claims that he required the use of a cane.
However, the record only shows that plaintiff reported that he
used a cane.
In his function report, plaintiff admitted that no
doctor prescribed the cane.
In addition, Dr. Gann noted in his
Medical Source Statement that plaintiff did not require the use
of a cane to ambulate.
In any event, use of a cane does not show
an inability to ambulate effectively for purposes of Listing §
1.02A, which requires that a claimant be unable to ambulate
39
without the use of an assistive device that limits both upper
extremities.
See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 1.00(B)(2)(b) quoted above.
Plaintiff further alleges that the ALJ failed to consider
whether his obesity exacerbated the effects of his other
impairments, and whether this combination of impairments equals
the criteria of the Listing.
Social Security Ruling 02-01p
requires an ALJ to consider an individual’s obesity and
combination of obesity with other impairments in determining
whether he is disabled.
An ALJ sufficiently considers
impairments in combination when an ALJ separately discusses each
impairment, the complaints of pain, and the daily activities, and
makes a finding that the impairments did not prevent the claimant
from performing work.
Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992); 20 C.F.R. § 416.923.
The ALJ properly
considered the combination of plaintiff’s alleged impairments
throughout the sequential evaluation process.
She specifically
found that plaintiff’s obesity was a severe impairment.
The ALJ
also found that plaintiff’s impairments or combination of
impairments, including his obesity, did not meet the requirements
of any listed impairment.
Finally, in determining plaintiff’s
residual functional capacity, the ALJ considered any limitations
imposed by his impairments, which includes his obesity.
40
Heino v.
Astrue, 578 F.3d 873, 881-82 (8th Cir. 2009) (“Because the ALJ
specifically took [the claimant’s] obesity into account in his
evaluation, we will not reverse that decision.”).
Finally, Plaintiff complains that the ALJ cited his failure
to argue that he met or equaled a listing.
Plaintiff contends
that the ALJ never allowed him to make such an argument at the
hearing.
The transcript shows that plaintiff’s counsel never
attempted to make such an argument at the hearing.
As the ALJ
noted, plaintiff, not the ALJ, had the burden to show that his
impairments met or equaled a listing.
Johnson v. Barnhart, 390
F.3d at 1070 (“The burden of proof is on the plaintiff to
establish that his or her impairment meets or equals a listing”).
Substantial evidence supports the ALJ’s finding that plaintiff’s
impairments or combination of impairments did not meet the
criteria of any listing.
Thus, the ALJ’s failure to specifically
address Listing § 1.02 is not reversible error.
Pepper o/b/o
Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003).
IX.
PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY
Finally, plaintiff argues that the residual functional
capacity as determined by the ALJ is not supported by the
evidence.
After analyzing plaintiff’s credibility and considering the
entire record, the ALJ incorporated into plaintiff’s residual
41
functional capacity those impairments and restrictions she found
credible.
The ALJ found that plaintiff had the residual
functional capacity to perform sedentary work with numerous nonexertional limitations.
The ALJ found that plaintiff could
occasionally climb, stoop, and kneel, but could not crawl,
balance, crouch, or use ladders, ropes, or scaffolds.
The ALJ
further found that plaintiff could only occasionally operate foot
controls and reach overhead.
A residual functional capacity is the most a claimant can do
despite the combined effect of all credible limitations.
C.F.R. § 416.945(a)(1).
20
A claimant has the burden to prove the
residual functional capacity at step four of the sequential
evaluation.
2001).
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
The ALJ determines a claimant’s residual functional
capacity based on all relevant evidence.
Harris v. Barnhart, 356
F.3d 926, 930 (8th Cir. 2004).
Contrary to plaintiff’s assertion, the ALJ’s residual
functional capacity finding is supported by the medical evidence.
A restriction to less than the full range of sedentary work is
more restrictive than plaintiff’s treatment notes, which show no
physical restrictions on plaintiff’s activities.
Choate v.
Barnhart, 457 F.3d 865, 870 (8th Cir. 2006) (a treating doctor’s
conclusion that the claimant could not perform light or sedentary
42
work was inconsistent with the treatment notes, which did not
show any restrictions on the claimant’s activities).
Plaintiff’s consultative examinations gave no indication
that he would be unable to perform sedentary work.
20 C.F.R. §
416.967(a) (defining sedentary work as requiring lifting no
more than ten pounds at a time, occasionally lifting or carrying
small articles, and occasionally walking and standing).
Although
plaintiff demonstrated decreased range of motion in his right
ankle and knees, he showed that he was able to at least walk
short distances, stand occasionally, and sit for a prolonged
time.
Plaintiff also had full grip and muscle strength, which is
consistent with a lifting restriction of ten pounds at a time.
A
restriction to less than the full range of sedentary work is a
significant restriction, which more than accounts for any
physical limitations plaintiff had.
Ellis v. Barnhart, 392 F.3d
988, 994 (8th Cir. 2005) (describing sedentary work as “a
significant limitation”).
Plaintiff complains that the ALJ did not include a narrative
discussion of precisely how the medical evidence supports the
residual functional capacity assessment.
However, an ALJ is not
required to list each limitation of the residual functional
capacity followed by the specific evidence that supports it.
generally SSR 96-8p.
See
Instead, the ALJ is required to determine
43
the residual functional capacity “based on all of the relevant
evidence.”
2004).
Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir.
In this case the ALJ properly considered the medical
evidence and plaintiff’s testimony and other reports.
Plaintiff further contends that the ALJ did not properly
assess the opinion of Dr. Gann, who conducted a consultative
examination and completed a Medical Source Statement in August
2007.
Dr. Gann initially concluded that plaintiff could
occasionally lift and carry up to ten pounds; stand for 15
minutes total in an eight-hour workday; and walk for ten minutes
total in an eight-hour workday.
Dr. Gann also concluded that
plaintiff could occasionally operate foot controls, and that
plaintiff had several postural and environmental limitations.
In
November 2007, Dr. Gann clarified that plaintiff could stand for
three hours and 25 minutes total12 (rather than the 15 minutes he
initially assessed) in an eight-hour workday, and could walk for
two hours total (rather than the ten minutes he initially
assessed) in an eight-hour workday.
The ALJ’s residual
functional capacity assessment is consistent with most of Dr.
Gann’s opinion.
12
Dr.
stand for
plaintiff
per day.
period.
Dr. Gann’s assessment of plaintiff’s lifting,
Gann actually marked on the form that plaintiff could
a total of three hours per day, and then handwrote that
could stand for a total of three hours and 25 minutes
It is unclear how he arrived at this unusual time
44
standing, and walking is consistent with sedentary work.
See 20
C.F.R. § 416.967(a), defining sedentary work as requiring lifting
no more than ten pounds at a time, and occasionally walking and
standing.
The ALJ’s residual functional capacity assessment is
also consistent with Dr. Gann’s opinion that plaintiff could
occasionally operate foot controls.
Finally, like Dr. Gann, the
ALJ concluded that plaintiff could not crawl or climb ladders or
scaffolds, but could occasionally stoop, kneel, and climb stairs
and ramps.
The ALJ found that plaintiff could not balance or
crouch, which was a more severe restriction than Dr. Gann
assessed in these areas.
Plaintiff contends that the ALJ mischaracterized Dr. Gann’s
opinion regarding his ability to sit.
The ALJ stated that Dr.
Gann concluded that plaintiff could sit for two hours
continuously for a total of eight hours.
Dr. Gann’s opinion is
ambiguous as to how long plaintiff can sit in an eight-hour
workday.
Dr. Gann checked that plaintiff could sit for two hours
continuously without interruption, but, on the same line, also
checked that plaintiff could sit for eight hours continuously
without interruption.
On the line concerning how many hours
plaintiff could sit total in an eight-hour workday, Dr. Gann
checked two hours.
Notwithstanding Dr. Gann’s ambiguous opinion,
the ALJ’s finding that plaintiff could perform sedentary work is
45
consistent with the opinion of Dr. Freitas, who concluded that
plaintiff could work a job requiring limited standing and walking
and prolonged sitting.
In addition, Dr. Subramanian concluded
that plaintiff had no sitting limitations.
Plaintiff also complains that the ALJ did not explain
precisely how much weight she gave Dr. Gann’s opinion.
As shown
above, the ALJ’s residual functional capacity assessment is
consistent with Dr. Gann’s opinion, which shows that she gave
great weight to Dr. Gann’s opinion even if she did not
affirmatively say so.
The numerous limitations in the ALJ’s
finding show that she carefully considered Dr. Gann’s opinion and
gave it credit to the extent that it was supported by the
evidence.
Choate v. Barnhart, 457 F.3d 865, 869-870 (8th Cir.
2006) (the ALJ adopted some of the “significant limitations”
assessed by the claimant’s treating physicians, “demonstrating
that the ALJ gave some credit to the opinions . . . where the
opinions were supported by the objective medical evidence”).
Plaintiff also argues that the ALJ should have included nonexertional limitations stemming from his depression.
The ALJ was
not required to include limitations due to plaintiff’s non-severe
impairments; she was only required to consider such impairments
in combination with plaintiff’s severe impairments in determining
plaintiff’s functional limitations.
46
See SSR 96-8p.
Plaintiff
cites his testimony that his depression impairs his
concentration; however, plaintiff cites no medical evidence in
support of this limitation because there is not any.
A residual
functional capacity assessment must only include a claimant’s
credible limitations.
Tindell v. Barnhart, 444 F.3d 1002, 1007
(8th Cir. 2006).
Finally, plaintiff argues that the ALJ failed properly to
consider whether plaintiff’s obesity combined with his other
impairments produced more severe limitations.
As discussed
above, the ALJ properly considered plaintiff’s obesity throughout
the sequential evaluation process.
Plaintiff does not offer any
additional limitations resulting from the exacerbating effects of
his obesity that would be inconsistent with sedentary work.
Because the ALJ’s residual functional capacity assessment is
consistent with the medical records, observations of treating
physicians and others, and plaintiff’s own credible description
of his impairments, her finding must be affirmed.
X.
CONCLUSIONS
Based on all of the above, I find that the substantial
evidence in the record as a whole supports the ALJ’s finding that
plaintiff is not disabled.
Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is
denied.
It is further
47
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
November 21, 2011
48
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