Hutchison v. Astrue
ORDER and OPINION affirming Commissioner's final decision. Signed on 11/18/2011 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case No. 10-5090-CV-SW-ODS
ORDER AND OPINION AFFIRMING COMMISSIONER’S FINAL DECISION
Pending is Plaintiff's request for review of the final decision of the Commissioner
of Social Security denying his disability application. The Commissioner's decision is
Plaintiff is a 66-year-old male with past relevant work as a bartender. He
received disability benefits previously, but in February 1992 he was found to be no
longer disabled. He applied for benefits again in 1993 and 1995, but did not pursue
those applications past the administrative level. Also, in 1993 he began receiving VA
benefits, and has not worked since that time.
Plaintiff’s current application is under Title II of the Social Security Act. To be
entitled to those benefits, he is required to show he was disabled before his date last
insured (March 31, 1997).
The ALJ determined that, for the relevant time period, Plaintiff suffered from the
following severe impairments: coronary artery disease with history of stent placement in
June 1996; hypertension; history of cataract replacement in September 1996;
degenerative disc disease; history of irritable bowel syndrome; dysthymia; and history of
polysubstance addiction. The ALJ concluded that, between 1992 and 1997, Plaintiff
could return to work as a bartender and could perform other jobs that existed in
significant numbers in the national economy. Plaintiff contends this decision is not
supported by substantial evidence in the record as a whole.
The Court must affirm the ALJ's decision if it is supported by substantial evidence
on the record as a whole. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011).
Substantial evidence is relevant evidence a reasonable mind would accept as adequate
to support a conclusion. Id. Evidence that both supports and detracts from the ALJ's
decision must be considered. Id. If two inconsistent positions can be drawn from the
evidence, and one of those positions represents the ALJ's decision, it will be affirmed.
(1) Treating Source Opinion
On May 1, 2007, John Baurichter, DO, opined Plaintiff was moderately limited in
certain areas of mental functioning related to concentration, social interaction, and the
ability to adapt. Dr. Baurichter did not state he was opining as to Plaintiff’s limitations
during the relevant period (1992–1997). Because Dr. Baurichter’s opinion was
rendered over a decade after Plaintiff’s date of last insured, the ALJ found it “shed no
light” on Plaintiff’s functioning during the relevant period.1
Plaintiff argues the ALJ “disregarded” Dr. Baurichter’s opinion, but this is not
accurate. The ALJ specifically stated she “considered” the opinion but declined to give
it “great weight.” The ALJ did not disregard the opinion.
Plaintiff also argues Dr. Baurichter’s opinion “was consistent with the other
medical evidence from the relevant time period.” But even if true, this does not mean it
The ALJ referred generally to “treating source opinions.” The parties do not
dispute that this reference included Dr. Baurichter’s opinion.
gives any indication of Plaintiff’s abilities during that time. Plaintiff contends otherwise,
asserting the opinion “provides significant insight into [Plaintiff’s] mental functional
limitations prior to March 31, 1997,” but the Court does not perceive how the opinion
does – or could do – this. And even if it did, Dr. Baurichter’s opinion that Plaintiff
suffered from “moderate” limitations would not have changed the ALJ’s decision
because the ALJ found Plaintiff suffered “moderate” mental limitations (based on
evidence from the relevant period) and concluded as a result that Plaintiff was restricted
to unskilled work. Thus, any error with respect to Dr. Baurichter was harmless.
(2) VA and State Disability Findings
Plaintiff argues the ALJ failed to properly consider findings by VA and the
Missouri Department of Social Services (DSS) that he was disabled. Findings of
disability by other governmental agencies are not binding on the Commissioner. 20
C.F.R. § 404.1504. But such evidence “cannot be ignored and must be considered,”
and the ALJ must “explain the consideration given.” SSR 06-03P, 2006 WL 2329939, at
The ALJ wrote that she “studied” the VA’s determination but did not give it
substantial weight because it was based on diagnoses alone, which was not the
standard applicable to Social Security claims. Plaintiff contends this discussion was
insufficient. Plaintiff cites Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998). But in
contrast to this case, Morrison involved VA disability findings that were accompanied by
extensive medical findings, and the ALJ in Morrison neglected to mention VA’s findings
altogether. Morrison is distinguishable for that reason.
Plaintiff also cites Rael v. Social Sec. Admin., No. 8:07CV432, 2008 WL
4279707, at *15 (D. Neb. Sept. 16, 2008). In Rael, the ALJ’s only mention of the VA’s
disability finding was to describe it and state that the VA’s standards differed from Social
Security’s and were non-binding. The court determined reversal was required in part
because the ALJ “fail[ed] to provide any reasons for rejecting the VA's disability
Rael is not persuasive. Together, SSR 06-03P and Morrison only require the
ALJ to consider other agencies’ disability decisions and to explain his or her
consideration of them, which includes giving reasons if the decisions are rejected. The
ALJ did that here. The ALJ’s reason for rejecting the VA’s disability determination –
because it was based solely on impairments (i.e., diagnoses) as opposed to functional
limitations caused by those impairments – is a valid reason to reject the VA’s
determination. See Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (“That a
claimant has medically-documented impairments does not perforce result in a finding of
disability” (citation omitted)).
As for the DSS’s disability determination, the ALJ failed to explicitly discuss it,
and this was error. But the Court concludes this error was harmless. DSS’s decision is
conclusory; it simply identifies Plaintiff’s impairments, discusses the law applicable to its
determination, and finds him disabled. No reasons are given why DSS found Plaintiff’s
impairments rendered him disabled. Thus, even if the ALJ had explicitly considered
DSS’s decision, it would not have changed her determination.
(3) Residual Functional Capacity Determination
A claimant’s RFC is the most a claimant can still do despite limitations caused by
impairments. 20 C.F.R. § 404.1545(a)(1). For the relevant period, the ALJ found
Plaintiff retained the residual functional capacity (RFC) to perform light work as defined
in 20 C.F.R. § 404.1567(b), which includes lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Consistent with the light
work finding, the ALJ also found Plaintiff capable of walking 6 hours in an 8-hour day,
and standing and sitting this same amount of time. Because of a mental impairment,
the ALJ limited Plaintiff to unskilled work.
Plaintiff argues the ALJ’s RFC determination is not supported by substantial
evidence in the record as a whole because the ALJ did not include limitations caused by
many of his impairments. Much of Plaintiff’s argument consists of him identifying his
numerous physical diagnoses between 1992 and 1997. But for the RFC assessment,
the question is not what impairments Plaintiff had, but what limitations he experienced
because of the impairments. See Stormo, 377 F.3d at 807.
In general, evidence of limitations must be provided by the claimant, although the
responsibility for developing a claimant’s complete medical history is the ALJ’s. See
§ 404.1545(a)(3). Evidence of limitations can come from many sources, including
statements from physicians and descriptions of limitations from the claimant him- or
herself. See id.
Plaintiff complains the ALJ included no manipulative limitations in her RFC
despite his diagnoses of carpal tunnel syndrome, ulnar neuropathy, tennis elbow, and
other conditions. But when asked at the hearing why he could not work, Plaintiff did not
testify about any manipulative limitations. And his medical records do not include any
limitations assigned by his physicians; all they show is that he reported symptoms (pain,
numbness, and weakness) in his hands. “As is true in many disability cases, there is no
doubt that the claimant is experiencing pain; the real issue is how severe that pain is.”
Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir. 2011) (internal quotation marks and
citations omitted). The ALJ could reasonably conclude from a radiology report and
EMG testing in 1993 – which showed only mild problems – that Plaintiff’s symptoms
were not severe.
Plaintiff next complains the ALJ failed to include in her RFC determination any
environmental limitations, such as restrictions on exposure to temperature extremes,
dust, or fumes, resulting from his impairments of chronic obstructive airway disease,
chronic bronchitis and sinusitis, coronary artery disease with stent placement in 1996,
hypertension, and other conditions. Plaintiff also contends the ALJ failed to consider
the effect of light work on these impairments. As for evidence of limitations, Plaintiff
testified in a vague and conclusory manner that he was “very limited” during the relevant
period and “did a lot of laying [sic] down.” The ALJ reasonably discounted Plaintiff’s
testimony in part because, after his stent placement in June 1996, his doctor found in
1998 he “ha[d] done well since then,” and his then-complaint of chest pain was
suspected to be “of esophageal or gastric etiology.”2 In addition, since Plaintiff
continued to smoke even after his impairments were diagnosed, the ALJ reasonably
could conclude Plaintiff’s cardiovascular and respiratory impairments were not so
severe to preclude him from work.
Plaintiff also argues the ALJ should have included in the RFC assessment
limitations resulting from his impairments of irritable bowel syndrome, inflammatory
bowel disorder, and Crohn’s disease. Plaintiff asserts these impairments caused
chronic diarrhea, abdominal pain, and nausea. The Court notes he testified that he left
“quite a few” bartending or restaurant jobs because he went to the restroom too
frequently, although this does not necessarily reflect any limitations between 1992 and
1997 because Plaintiff stopped working in 1988. The Court also notes Plaintiff
frequently sought medical treatment for bowel problems during the relevant period and
reported severe cramping and diarrhea. But Mark Alex, MD, testified as an independent
medical expert (ME) at the hearing, and he stated Plaintiff could do light work.3 Plaintiff
counters the ME’s “general assessment” did not account for many of Plaintiff’s
impairments, including his bowel disorders. While true, the ME stated he had reviewed
the file before testifying.4 Based on this testimony, the ALJ could reasonably conclude
the ME believed Plaintiff capable of light work despite the impairments contained in the
file, even those the ME did not mention. And Plaintiff’s counsel could have questioned
the ME at the hearing whether Plaintiff’s bowel problems would change his opinion, but
she declined to cross-examine at all. Substantial evidence in the record as a whole
supports the ALJ’s RFC assessment without limitations for Plaintiff’s bowel impairments.
Next, Plaintiff argues visual limitations should have been included in the RFC
calculation. In support of this argument, Plaintiff asserts he had five surgeries between
Plaintiff had complained of chest pain in July 1997 (after his date last insured),
and was diagnosed with “possible angina.”
Admittedly, the ME stated this was a “guesstimate.” Plaintiff does not argue
this “guesstimate” was anything other than the ME’s opinion.
The Record is 1,544 pages long.
1996 and 2003, and after each surgery he continued to report blurry vision, floaters, a
foreign body sensation, flashes of light, and burning and itchiness. But during his
hearing, Plaintiff never testified any vision problems stopped him from doing any daily
activities. And his medical records do not support visual limitations. They show that on
or about May 10, 1995, Robert E. Benedett, MD, found Plaintiff had a minimal cataract
in his right eye and vitritis (generally, inflammation) in both eyes, but his vision was
20/40 and 20/20. On September 18, 1996, 6 days before he had cataract surgery,
Plaintiff reported “difficulty reading,” but no other limitations were noted. After an
appointment in October 1996, Plaintiff did not seek treatment from Dr. Benedett for an
entire year. When he did return (after his date last insured), his vitritis was “much
improved.” Based on this evidence, the ALJ had no reason to think Plaintiff’s visual
impairments prevented him from working during the relevant period.
Lastly, Plaintiff argues the ALJ’s RFC determination should have included
restrictions on his contact with the general public, coworkers, or supervisors. Plaintiff
relies in part on a 1965 Air Force consultation report which noted Plaintiff “ha[d] shown
very little ability to cultivate close personal relationships and little ability to tolerate any
kind of disorganization or mildly disagreeable situations.” He was diagnosed with a
passive-dependent personality, dependent type. Plaintiff cites the report in support of
his assertion that his personality disorder caused “difficulties interacting with other
But after he was discharged from the Air Force, Plaintiff went to college and
performed various jobs requiring social contact until the 1980s, including working as a
ballroom dance instructor, an assistant manager at a “Jewish camp,” and a bartender.
Plaintiff received Social Security disability benefits between 1986 and 1992, but he did
not testify he stopped working due to an intolerance of social contact; he testified he
stopped working after his mother asked him to move back to Missouri and he entered a
substance abuse treatment center. And due to the remoteness in time of the Air Force
report, it is not very probative of Plaintiff’s mental status between 1992 and 1997.
Plaintiff also cites a 1993 psychological evaluation from Kenneth R. MacDonald,
PhD, the purpose of which was to determine Plaintiff’s eligibility for state assistance.
Plaintiff reported to Dr. MacDonald he had “severe mood swings characterized by
explosive temper outbursts and depressive reactions that have involved two suicidal
attempts.” Based on this report, Plaintiff asserts public interaction would have been
“difficult if not impossible.” Plaintiff also notes Dr. MacDonald’s finding that his social
judgment skills were weak.
The ALJ was warranted in not including social limitations in her RFC assessment
despite Dr. MacDonald’s evaluation. The ALJ concluded Plaintiff only “had mild
difficulties” in social interaction. The ALJ supported this finding with by noting Plaintiff
had no problems interacting with physicians and was not confined to his home for fear
of interacting with others. The “severe mood swings” and “explosive temper” notations
in Dr. MacDonald’s records derived solely from Plaintiff’s report, not from any
documented behavior. Further, Plaintiff never testified public contact prevented him
from working during the relevant period. The ALJ’s RFC calculation was adequate
without limitations on social interaction.
Plaintiff contends the ALJ ignored his testimony regarding his physical and
mental limitations without good reasons for doing so. The main reason the ALJ
discounted Plaintiff’s credibility was due to the absence of medical evidence supporting
the complaints, which is a good reason. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.
1998) (stating absence of objective medical evidence is factor relevant to claimant’s
credibility). Moreover, Plaintiff waited several years before applying for benefits. This is
a valid reason to question the accuracy of Plaintiff’s statements in part due to the
remoteness of the relevant period. Finally, the ALJ noted during the initial hearing that it
appeared Plaintiff was “jockeying around” for benefits because he applied for Social
Security retirement benefits in April 2007 (the month he turned 62) while his disability
claim was pending, and then withdrew that application. Plaintiff makes no argument
that these were not appropriate reasons to question his credibility.
Plaintiff’s only specific argument is that the ALJ should not have found that his
motivation to work diminished after his receipt of VA benefits. Plaintiff argues he
stopped working because he no longer could, not because he had a financial incentive
to stop. But the Eighth Circuit upheld a credibility determination in which an ALJ made
a similar finding in Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004). When a
person claims they cannot work due to disability, an ALJ can properly question this
claim if the evidence shows other reasons the person may not be working. The Court
defers to the ALJ’s credibility determination.
The Commissioner’s decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: November 18, 2011
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?