Hodges v. Astrue
ORDER entered by Judge Nanette Laughrey. The decision of the Commissioner is AFFIRMED. (Kanies, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SHELIA L. HODGES,
Commissioner of Social Security
Case No. 4:10-CV-00804-NKL
Before the Court is Plaintiff Shelia Hodges’ Social Security Complaint [Doc. # 5]. For the
following reasons, the Court affirms the decision of the Administrative Law Judge (“ALJ”).
This suit involves Plaintiff’s application for disability insurance benefits under Title
II of the Social Security Act (“Act”), 42 U.S.C. §§ 401, et seq. On February 12, 2009,
following a hearing, an ALJ found that Plaintiff was not under a “disability” as defined in
the Act. Plaintiff appeals from that decision.
On November 15, 2005, Plaintiff saw Lynn DeMarco, M.D., at Truman Medical
Center West. Dr. DeMarco noted Plaintiff’s rheumatoid arthritis was active and
laboratory results showed that her medication, methotrexate, was undetectable.
The facts and arguments presented in the parties’ briefs are duplicated here only to the
extent necessary. Portions of the parties’ briefs are adopted without quotation designated.
Six months later, Plaintiff saw William Rees II, M.D., for possible sleep apnea on
April 11, 2006. He noted Plaintiff had a history of symptoms, including large neck,
snoring and difficulty staying awake. Plaintiff’s rheumatoid arthritis was “stable.” [Tr.
124]. During the physical examination, Plaintiff was able to walk without assistance and
appeared comfortable and denied musculoskeletal symptoms, decreased range of motion,
joint pain, joint stiffness, joint swelling, joint warmth, shortness of breath, neck pain or
stiffness, edema, and changes in activities of daily living.
On July 13, 2006, Plaintiff saw Courtney Langdon, M.D., for “possible obstructive
sleep apnea.” [Tr. 118]. Plaintiff denied symptoms suggestive of narcolepsy and
reported her snoring woke her in the night. Dr. Langdon ordered an overnight sleep
study. During a neurologic examination, the physician noted a normal gait and normal
On August 28, 2006, Plaintiff underwent a sleep study and was diagnosed with
mild obstructive sleep apnea with sleep disruption. Sleep quality was improved and
Plaintiff experienced no sleep disruptions (apnea-hypopnea) with the initiation of a bilevel positive airway pressure machine (BiPAP). Dr. Langdon recommended the BiPAP
for home use.
On October 26, 2006, Plaintiff saw Dr. DeMarco for reevaluation of rheumatoid
arthritis. Plaintiff complained of joint pain, swelling in her right wrists, low back pain,
and dizzy spells. Dr. DeMarco concluded that Plaintiff had rheumatoid arthritis in partial
remission on methotrexate, osteoarthritis of the low back without evidence of
radiculopathy, sleep apnea, and obesity. Plaintiff was told to continue her methotrexate
and prednisone and return in three months.
On October 27, 2006, Plaintiff reported her sleep apnea was improved with the use
of the BiPAP, and she was not napping anymore. The nurse told Plaintiff to return to the
clinic in six months.
On January 8, 2007, x-rays of Plaintiff’s right wrist showed only degenerative
changes in the carpal bones and distal radius and soft tissue swelling in the hand and
Six months after her last appointment, Plaintiff returned to the Pulmonary Clinic
for a follow-up sleep study on February 21, 2007. Under clinical observation, she
experienced no sleep disruption (apnea-hypopnea) with use of the BiPAP, and its use was
well-tolerated. Dr. Langdon adjusted Plaintiff’s BiPAP.
On May 30, 2007, Plaintiff reported she was “doing well” aside from low back
pain, right hand discomfort, and ankle swelling. [Tr. 182]. The staff physician noted all
joints were non-tender, there was no edema in the ankle, and right-hand discomfort was
related to the recent removal of a cyst. X-rays of Plaintiff’s back showed no evidence of
acute injury, normal vertebral height and alignment, neuroforaminal narrowing was
suggested at L5/S1, and arthropathy at the lower lumbar spine. Plaintiff’s rheumatoid
arthritis was in partial remission.
On August 2, 2007, Plaintiff visited Truman Medical Center West with complaints
of diarrhea and concern for trichomoniasis. She had “no other complaints.” [Tr. 172].
Her extremities were normal, with no edema. She denied shortness of breath.
Also on August 2, 2007, Plaintiff had a follow-up sleep study. Under clinical
observation, Plaintiff experienced no sleep disruption (apnea-hypopnea) with use of the
BiPAP. The next day, Plaintiff underwent a multiple sleep latency test (MSLT). Dr.
Langdon noted multiple daytime naps consistent with severe sleepiness.
On August 30, 2007, Plaintiff reported daytime sleepiness. However, there was no
snoring or apnea while Plaintiff used the BiPAP. After reviewing the results of the
August 3 MSLT, a staff physician noted the study was “suggestive of narcolepsy.” [Tr.
162]. Plaintiff was advised to return to the clinic in six months.
On September 26, 2007, Plaintiff saw Dr. DeMarco for a follow-up appointment.
He noted that she was noncompliant with her rheumatoid arthritis medication.
On April 14, 2008, Plaintiff saw Dr. DeMarco. He noted a “long absence” since
she was last seen in September 2007. [Tr. 158]. “Importantly, patient has not filled her
prescription . . . since September 2007.” Id. He noted a history of sleep apnea, past
diagnosis of osteoarthritis, obesity, rheumatoid arthritis with active synovitis in the right
wrist, and noncompliance.
Nine months after her last appointment, Plaintiff returned to the Pulmonary Clinic
on April 28, 2008. Ashraf Gohar, M.D., noted the purpose of the visit was a “followup of
obstructive sleep apnea and narcolepsy.” [Tr. 156]. He also noted positive for “vertigo
symptoms for 7 months” and scheduled Plaintiff for an appointment to see a primary-care
physician for vertigo. [Tr. 157]. Dr. Gohar talked with a social worker and asked her to
work with Plaintiff to obtain sleep medication, but there was no record of Plaintiff
contacting the social worker or taking the medication. Dr. Gohar observed full strength
(5/5) in both upper and lower extremities. Plaintiff was scheduled to return to the clinic
in eight weeks.
On June 25, 2008, Plaintiff visited Truman Medical Center for a follow-up
appointment after a mammogram. During the visit, she complained of edema, snoring,
and joint pain. Plaintiff denied shortness of breath, joint stiffness, and decreased ranges
of motion. Plaintiff was observed to walk without assistance and appeared comfortable.
Plaintiff’s rheumatoid arthritis was stable. Plaintiff reported daytime sleepiness and sleep
On July 16, 2008, Plaintiff visited the Truman Medical Center Family Planning
Clinic with complaints of urinary incontinence. Plaintiff was prescribed Detrol for
bladder control. Plaintiff reported a past medical history of sleep apnea and rheumatoid
arthritis and described lower back pain that was relieved with Motrin.
On December 1, 2008, Plaintiff saw Dr. DeMarco for reevaluation of her
rheumatoid arthritis, “primarily affecting the right wrist.” [Tr. 138]. Plaintiff stated she
was doing “fairly well” on the methotrexate and gave herself a weekly injection. Id. She
reported that she also took prednisone and “occasional” ibuprofen. Id. Dr. DeMarco
noted swelling in the right metacarpal joint, but related it to a surgical scar. Her
neurological examination was normal. The physician noted rheumatoid arthritis in partial
remission and obesity.
On December 19, 2008, Plaintiff returned to Truman Medical Center West for a
general examination. She reported wrist and back pain, which she attributed to
rheumatoid arthritis that was “unstable.” [Tr. 137]. Upon examination, Plaintiff was able
to walk without assistance and appeared comfortable. Plaintiff reported having sleep
apnea, and she was referred to the Pulmonary clinic for a BiPAP adjustment.
At her administrative hearing on January 26, 2009, Plaintiff testified that she was
unable to work because of rheumatoid arthritis and carpal tunnel syndrome in the right
hand which caused cramping, tightening, and weakness. Plaintiff testified that some days
she could not do anything because of her weak wrists, and that she could hold a pen only
long enough to sign her name and address. She also testified to stiffness in her back and
arms and swollen ankles. Plaintiff further testified that she could stand for two minutes,
walk one and one-half blocks, and sit for less than 30 minutes, and that she had shortness
of breath on any kind of exertion.
A vocational expert, Lesa Keen, also testified at the hearing. The ALJ posed a
hypothetical to Ms. Keen, assuming an individual who could perform light work,
including standing and walking six hours in an eight-hour workday and sitting six hours
in an eight-hour workday, with occasional performing of posturals, but with no frequent
twisting of the right wrist and no frequent very hard grasping bilaterally. [Tr. 33]. The
vocational expert testified that such an individual would be able to perform the light,
unskilled work of a cashier, photocopy machine operator, and collator operator and these
jobs exist in significant numbers in the national economy.
The ALJ’s Decision
The ALJ found that Plaintiff had the severe impairments of “rheumatoid arthritis in
full to partial remission with poor medication compliance; weight disproportionate to
height at 67 inches tall with weight of approximately 248 pounds and early degenerative
disc and joint disease in the lumbar spine.” [Tr. 11]. The ALJ also found that Plaintiff
has “sleep apnea which is controlled with a CPAP and does not constitute a severe
impairment since the claimant has no significant residual limitations stemming
therefrom.” Id. The ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments.
Id.; 20 C.F.R. § 404.1520(d) (2011).
The ALJ found that Plaintiff retained the Residual Functional Capacity (“RFC”)
“to perform light work as defined in 20 CFR 416.967(b) except she cannot perform any
frequent twisting of the right wrist and no frequent very hard grasping bilaterally and can
occasionally perform all postural positions.” Id.
Finally, the ALJ found that, while Plaintiff is unable to perform past relevant work,
there are jobs that exist in significant numbers in the national economy that Plaintiff can
Standard of Review
In reviewing the Commissioner’s denial of benefits, the Court considers whether
the ALJ’s decision is supported by substantial evidence on the record as a whole. See
Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). “Substantial evidence is evidence that
a reasonable mind would find adequate to support the ALJ’s conclusion.” Nicola v.
Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (citation omitted). The Court will uphold the
denial of benefits so long as the ALJ’s decision falls within the available “zone of
choice.” See Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007). “An ALJ’s decision is
not outside the ‘zone of choice’ simply because [the Court] might have reached a
different conclusion had [it] been the initial finder of fact.” Id. (quoting Nicola, 480 F.3d
Whether the ALJ’s Determination Regarding Plaintiff’s Credibility is
Supported by Substantial Evidence
Plaintiff argues that the ALJ erred in considering Plaintiff’s noncompliance with
treatment when assessing Plaintiff’s credibility. Specifically, Plaintiff claims the ALJ
“erred by failing to follow Social Security Ruling 82-59 when evaluating Plaintiff’s
failure to follow the prescribed treatments to determine her credibility.” [Doc. # 13, at
Social Security Ruling 82-59 applies only “to claimants who would otherwise be
disabled within the meaning of the Act; it does not restrict the use of evidence of
noncompliance for the disability hearing.” Holley v. Massanari, 253 F.3d 1088, 1092
(8th Cir. 2001) (holding Social Security Ruling 82-59 does not restrict use of evidence of
noncompliance, but rather delineates reasons the Administration may deny benefits to
otherwise disabled persons due to noncompliance). An ALJ may consider a plaintiffs’
“noncompliance with treating physician’s directions, including failure to take prescription
medications . . . .” See Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006).
Here, the ALJ did not find that Plaintiff was disabled, nor did he deny benefits to
Plaintiff solely due to noncompliance with medication. Social Security Ruling 82-59 is
therefore not applicable. Instead, the ALJ properly used Plaintiff’s noncompliance as a
factor in his analysis of Plaintiff’s credibility. Substantial evidence supports the ALJ’s
determination of Plaintiff’s credibility, including, inter alia, Plaintiff’s poor work record,
daily activities, recent work on a political campaign, and inconsistences between
Plaintiff’s allegations of physical limitations and the objective medical evidence.
For the reasons stated above, Plaintiff’s first argument pertaining to the Social
Security Ruling 82-59 fails.
Whether the ALJ Properly Analyzed Plaintiff’s Medically
Determinable and Non-severe Impairments
Plaintiff next argues the ALJ erred (1) by finding no medically determinable
physical impairment of sleep apnea, narcolepsy and vertigo, and (2) in finding that
Plaintiff had non-severe sleep apnea in step two of the sequential evaluation process. The
Commissioner has established a five-step sequential evaluation process used to decide if a
claimant is disabled, the first two of which are relevant here. 20 C.F.R. § 404.1520
(2011). At the first step, the ALJ determines if a claimant is “doing substantial gainful
activity . . . .” 20 C.F.R. § 404.1520(a)(1)(i) (2011). The second step considers the
medical severity of claimant’s impairments. 20 C.F.R. § 404.1520(a)(1)(ii) (2011).
Absent an “impairment or combination of impairments which significantly limits
[claimant’s] physical or mental ability to do basic work activities,” there is no severe
impairment, and the claimant therefore is not disabled. 20 C.F.R. § 404.1520(c) (2011).
Whether the ALJ Erred by Finding no Medically Determinable
Physical Impairments of Narcolepsy and Vertigo
In step one of the sequential evaluation process, the ALJ determined that Plaintiff
had not engaged in substantial gainful activity since November 3, 2006. [Doc. # 9, Ex. 3,
at 12]. The ALJ then proceeded to step two, where he determined that Plaintiff has the
severe impairments of (1) rheumatoid arthritis in full to partial remission with poor
medication compliance, (2) weight disproportionate to height at 67 inches tall with weight
of approximately 248 pounds, and (3) early degenerative disc and joint disease in the
lumbar spine. [Tr. 11]. Plaintiff contends that the ALJ improperly failed to acknowledge
her narcolepsy and vertigo as severe impairments.
Plaintiff claims that she has the medically determinable impairments of narcolepsy
and vertigo, and was diagnosed therewith by her treating physicians at Truman Medical
Center. However, Plaintiff did not allege in her application for benefits or at the
administrative hearing that she had narcolepsy and vertigo. [Tr. 76, 16-35]. The ALJ
does have a duty to fully develop the record, but he “is not obliged to investigate a claim
not presented at the time of the application for benefits and not offered at the hearing as a
basis for disability.” Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008).
Because Plaintiff did not allege disability due to narcolepsy and vertigo, nor cite
any authority requiring the ALJ to investigate impairments not alleged, the ALJ was not
obligated to investigate them and therefore committed no error by failing to do so.
Whether the ALJ Erred in Finding Plaintiff had Non-severe
Sleep Apnea in Step Two of the Sequential Evaluation Process
The ALJ said “that the claimant does have sleep apnea which is controlled with a
CPAP and does not constitute a severe impairment since the claimant has no significant
residual limitations stemming therefrom.” [Tr. 11]. Plaintiff alleges that the ALJ erred at
step two of the sequential evaluation process in finding that her sleep apnea was nonsevere.
Severe impairments significantly limit a claimant’s physical or mental ability to do
basic work activities, regardless of age, education, and work experience. 20 C.F.R. §
416.920(c). Basic work activities are the “abilities and aptitudes necessary to do most
jobs.” 20 C.F.R. § 404.1521. Basic work activities include physical functions such as
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling,” as
well as “understanding, carrying out, and remembering simple instructions.” 20 C.F.R. §
404.1521(b)(1)-(6) (2011). When an “impairment can be controlled by treatment or
medication, it cannot be considered disabling.” Brace v. Astrue, 578 F.3d 882, 885 (8th
Cir. 2009) (quoting Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004).
Here, the ALJ found Plaintiff’s sleep apnea was “controlled with a CPAP.” This
finding is adequately supported in the record. [Tr. 111, 115, 175, 189]. The ALJ’s
decision concerning the severity of Plaintiff’s sleep apnea was well supported by
substantial evidence in the medical record.
Whether the ALJ Properly Considered Plaintiff’s Obesity
Plaintiff next alleges that the ALJ erred in failing to properly evaluate the effect of
her obesity, as required by Social Security Ruling 02-1p, when he made his RFC findings.
An ALJ is required to consider obesity in determining whether the claimant’s
impairments meet or equal the requirements of a listed impairment. SSR 02-1p, 67 Fed.
Reg. 57859, 57861 (Sept. 12, 2002).
When the ALJ “references the claimant’s obesity during the claim evaluation
process, such review may be sufficient to avoid reversal.” Heino v. Astrue, 578 F.3d 873,
881 (8th Cir. 2009). Here, the ALJ found Plaintiff’s obesity was a severe impairment at
step two of the sequential evaluation process. [Tr. 11]. Moreover, the ALJ specifically
referred to Plaintiff’s obesity, noting “that she was 67 inches tall with a weight of
approximately 245 pounds . . . .” [Tr. 13]. Further, Plaintiff’s RFC is consistent with the
findings of the State Medical Consultant, Dr. Timothy Link, whose physical RFC
assessment specifically considered Plaintiff’s obesity. [Tr. 127-131].
Because the ALJ specifically referenced Plaintiff’s obesity, and because his
decision is well supported by the medical record, the Court will not reverse his decision
on this ground.
Whether the ALJ Properly Determined Plaintiff’s RFC
Finally, Plaintiff argues that the ALJ committed reversible error by arbitrarily
determining a RFC which was not based upon all of the medical evidence and by not fully
explaining the basis of his determination as required by Social Security Ruling 96-8p.
“The RFC assessment must be based on all of the relevant evidence in the case record . . .
.” SSR 96-8p, 61 Fed. Reg. 34474, 34477 (July 2, 1996) (emphasis in original). In his
decision, the ALJ is required to include a “narrative discussion describing how the
evidence supports each conclusion,” and also explaining “how any material
inconsistencies or ambiguities in the evidence” were resolved. Id. at 34478.
Specifically, Plaintiff complains that the ALJ failed to provide a proper
explanation for why his RFC differed from the assessment done by the agency’s
consulting physician, Dr. Link, on November 29, 2006. Plaintiff describes the ALJ’s
decision as a “rejection” of the RFC assessment performed by Dr. Link. [Doc. # 13, at
21]. However, as explained above, the RFC is based upon all relevant evidence, not just
the assessment provided by the agency’s doctor. In fact, the RFC determined by the ALJ
is nearly identical to Dr. Link’s assessment, with the exception of the limitation on the
climbing of ladders, ropes, and scaffolds. See [Tr. 129 (RFC Assessment conducted by
Dr. Link)]; [Tr. 11 (ALJ Decision)]; § 416.920(b) (physical exertion requirements of
“light work”). The ALJ fully detailed his analysis in reaching his decision, which is
supported by substantial evidence from the medical record. [Tr. 12-13].
Because the ALJ’s decision is supported by substantial evidence on the record as a
whole, the Court affirms his decision.
Accordingly, it is hereby ORDERED that the decision of the Commissioner is
s/ NANETTE K. LAUGHREY
NANETTE K. LAUGHREY
United States District Judge
Dated: August 2, 2011
Kansas City, Missouri
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