Ohmart v. Colvin

Filing 27

ORDER. The Commissioner's decision is affirmed. Signed on 4/28/14 by District Judge Nanette K. Laughrey. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
ALICIA R. OHMART,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.

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Case No. 4:13-CV-00267-NKL

ORDER
Before the Court is Plaintiff Alicia R. Ohmart’s appeal of the Commissioner of
Social Security’s final decision denying her application for supplemental security income
(SSI). The Commissioner’s decision is affirmed.
I.

Background
Ohmart was born in April 1976. She completed the tenth grade and has work

experience as a fast food worker, caring for plants at a green house, and filling vending
machines. Her lifetime earnings total about $9,900.
Ohmart alleges she became disabled beginning in July 2006 when she was hurt at
work. She filed her application for SSI on August 27, 2010. [Tr. 182.] To be eligible for
SSI under Title XVI, a claimant must establish that she was disabled while her
application was pending. See 42 U.S.C. § 1382c; 20 C.F.R. §§ 416.330 and 416.335.
Thus, the relevant time period for Ohmart’s SSI claim is August 27, 2010, the date she
filed her application, through March 23, 2012, the date of the Administrative Law

Judge’s (ALJ’s) decision.
A. Medical Evidence
Ohmart suffered head trauma with concussion at her vending machine job in July
2006, when a television fell on her head. Her treatment included visits with Dr. James
Zarr in late 2006 and January 2007. [Tr. 399-406.]
Dr. Dale Essmeyer saw Ohmart several times. Dr. Essmeyer diagnosed stressrelated headaches in November 2010. [Tr. 1162.] In December 2010, in the context of
helping Ohmart prepare paperwork related to her SSI application, he noted Ohmart to be
obviously limited in motion from back pain, and that she had physical problems, but that
her psychiatric problems were clinically more significant than her physical ones.
[Tr. 1161.] In January 2011, Dr. Essmeyer found Ohmart to be getting along fairly or
reasonably well, with pain stable and controlled a majority of the time, and anxiety fairly
well controlled. [Id.] At a February 2011 visit, he noted she was getting along with her
pain pretty well. [Tr. 1160.] At a March 2011 visit, he found she was getting along
reasonably well with her medications, and noted her asthma had improved with inhalers
and therapy. [Tr. 1153.] She saw him in April 2011, and twice in May 2011. At one of
the May visits, Ohmart mentioned to him that she was going to Joplin to help a friend
after the tornado.

Dr. Essmeyer diagnosed chronic pain syndrome and performed

osteopathic manipulation. [Tr. 1155.]
Ohmart was seen several times by a psychiatrist, Dr. Henry Wisdom. He ordered
a sleep study in November 2009, which showed Ohmart required no supplemental
oxygen, that her EEG had no significant abnormalities, and that she did not have sleep
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apnea or need CPAP therapy. [Tr.1015-1020]. It showed REM sleep patterns consistent
with sleep deprivation or withdrawal from a REM-sleep suppressing agent, or both.
[Tr. 1003.] In December 2010, Dr. Wisdom felt Ohmart was stabilized, and continued
her medications.

[Tr. 1180.]

He increased a sleep medication in February 2011.

[Tr. 1181.] He saw her in March 2011 and renewed her medications in May, June, July
and August 2011. [Tr. 1093/ 1100; 1102; 1183.] At the August 2011 visit, she asked to
be seen every two months, but Dr. Wisdom wanted to continue to see her monthly
because she was taking benzodiazapenes. [Tr. 1093-94.]

At Ohmart’s September and

October 2011 visits, Dr. Wisdom continued her medications. [Tr. 1150-51.] At her
November 2011 visit, Dr. Wisdom noted Ohmart’s mood and affect were good and that
“she seem[ed] to be holding her own.”

[Tr. 1149.]

At her December 2011 visit,

Dr. Wisdon adjusted a medication dosage. [Tr. 1148.]
Ohmart was seen at the Headache and Pain Center in August 2011 and twice in
December 2011 for chronic neck and back pain, and was prescribed pain medications.
[Tr. 1085-88; 1141-44.]

Additionally, at the August 2011 visit, her judgment and

insight, memory, mood, affect, fund of knowledge, and capacity for sustained mental
activity were noted to be normal.

[Tr. 1143-44.] At a December 2011 visit, a

conditioning program was prescribed and all prior MRIs were noted to have been
normal. [Tr. 144.]
B. Opinion evidence
In January 2007, Dr. James Zarr concluded Ohmart was subject to the following
restrictions: no lifting greater than 20 pounds and no overhead lifting. [Tr. 406.] He
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noted that all findings on examination were subjective; there were no objective findings.
[Id.] An MRI of her cervical spine was unremarkable. [Id.] The ALJ gave this opinion
“some weight.” [Tr. 19.]
Ohmart was seen at Occupational Consulting Services in March 2007 and
diagnosed with chronic cervico-thoracic myofascitis, cervical strain, head contusion, and
right shoulder strain. She was restricted to “modified” duties of no lifting greater than 10
pounds from waist to shoulder height on an occasional basis, and no overhead work with
the right arm. [Tr. 500.] The note does not indicate how long she was restricted, and
recommends a shoulder x-ray. [Id.] The ALJ did not identify the weight given this
opinion.
Dr. Harden, a psychiatrist, and APRN Delores Lesseig examined Ohmart at the
request of the Sullivan County Family Services in June 2007, for purposes of state
disability evaluation.

[Tr. 506.]

Diagnoses included PTSD with dissociative and

psychotic features, poly-substance abuse in remission, anxiety disorder, bipolar disorder
by history, and borderline personality disorder.

[Tr. 511.] Dr. Harden and APRN

Lesseig completed a disability certification for the Missouri Department of Social
Services, opining that Ohmart would be incapacitated for 6-12 months. [Tr. 513-14.] The
ALJ gave this opinion “little” weight. [Tr. 20.]
Dr. Hutson completed a psychiatric review technique form in October 2007 in
connection with Ohmart’s prior SSI application; he did not examine or treat Ohmart. [Tr.
623-627.] Dr. Hutson noted Ohmart to have medically determinable impairments of
bipolar disorder by history; PTSD with dissociative and psychotic features; borderline
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personality disorder; and poly-substance abuse in remission. [Tr. 623, 626-29.] He
opined that she had mild restriction of activities of daily living, moderate difficulties
maintaining social functioning, and moderate difficulties maintaining concentration,
persistence, or pace, and that her impairments were “severe.” [Tr. 631-33.]
Dr. Hutson then completed a mental RFC, in which he opined, among other
things, that Ohmart was moderately limited in the ability to work in coordination with or
proximity to others without being distracted by them; accept instructions and respond
appropriately to criticism from supervisors; get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; and respond appropriately to changes
in the work setting. [Tr. 635-36.] He opined that Ohmart could understand, remember,
and carry out simple instructions and complete routine tasks, may have difficulty
adjusting to the environment of others in a work setting, and would do better in a lowstress work environment with few confrontations. [Tr. 637.] The ALJ did not identify
the weight given this opinion.
Dr. Blachar, a pain management physician who had treated Ohmart, and wrote a
letter in October 2008 in which he opined that she should not perform frequent activities
requiring repeated reaching above her head, or lift more than 10 pounds, and noting she
had flare-ups of her Crohn’s and abdominal pain which cause her to miss work.
[Tr. 863.] He opined that she was capable of working 40 hours per week at a sedentary
job. [Id.] The ALJ did not identify the weight given this opinion.
As noted in the prior section, Dr. Essmyer saw Ohmart in December 2008. He
opined that she could not maintain gainful employment due to her multitude of problems,
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the major underlying factor being psychiatric. [Tr. 963.] The ALJ gave Dr. Essmyer’s
opinions “little” weight. [Tr. 19.]
Dr. Bucklew completed a psychiatric review technique form in November 2010,
noting medically determinable impairments of bipolar and anxiety disorders. [Tr. 105455.]

He opined that Ohmart had mild restriction of activities of daily living, mild

difficulties maintaining social functioning, and moderate difficulties maintaining
concentration, persistence, or pace.

[Tr. 1059.] He noted ability to remember,

understand, and complete less demanding instructions with usual supervision and
ongoing psychiatric treatment. ]Tr. 1062.]
Dr. Bucklew also completed a mental RFC, opining that Ohmart was moderately
limited in the ability to understand, remember, and carry out detailed instructions, sustain
an ordinary routine without special supervision, or get along with co-workers or peers
without distracting them or exhibiting behavioral extremes. [Tr. 1063-64.] The ALJ
gave Dr. Bucklew’s opinions “significant” weight. [Tr. 20.]
C. Ohmart’s function report, and testimony
Ohmart filled out a Function Report—Adult in August 2010. She wrote that she
does dishes, some light dusting, and the laundry; makes the bed; prepares food or meals
weekly or monthly; cares for her personal hygiene; gardens; attends to her finances; takes
her children to the park; takes small walks to the park; spends time with people every
day; and visits with friends and family. [Tr. 144-148.] She indicated that she uses
glasses, but not a brace or splint. [Tr. 150.]
At the February 2012 hearing, Ohmart testified that she drives once or twice a
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week to go to the doctor’s office and grocery store [Tr. 35]; picks up her mother to go to
the store [Tr. 48]; does the laundry [Tr. 47]; and visits her mother at her mother’s home
three or four times a month [Tr. 49].
D. The ALJ’s decision
The ALJ found that Ohmart’s subjective complaints of disabling symptoms were
not fully credible to the extent Ohmart claimed they rendered her totally unable to work.
[Tr. 12-21.] While the ALJ found that the medical evidence showed Ohmart suffered
from the severe impairments of cervical spondylosis, bipolar and anxiety disorders, and
chronic pain syndrome/fibromyalgia, the ALJ rejected Ohmart’s allegations that those
impairments rendered her disabled within the meaning of the Act. [Tr. 12-21.] The ALJ
found Ohmart’s carpal tunnel syndrome, migraines, asthma, and Crohn’s disease to be
“non-severe” and Ohmart’s fatigue not medically determinable. [Tr. 14.]
The ALJ found Ohmart had mild restriction of activities of daily living, mild
difficulties maintaining social functioning, and moderate difficulties maintaining
concentration, persistence, or pace. [Id.] The ALJ noted that Ohmart cooks and cleans;
cares for her personal hygiene; handles her finances; engages in social activities including
taking her children to the park and visiting with family; drives; gardens; and has had no
episodes of decompensation of extended duration. [Tr. 15.]
Following analysis of the evidence as a whole, including Ohmart’s subjective
allegations and the medical evidence, the ALJ incorporated into Ohmart’s residual
functional capacity [RFC] those impairments and limitations the ALJ found credible and
supported by the overall record. [Tr. 16.] The ALJ found that Ohmart had the RFC to
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perform sedentary work as defined in 20 C.F.R. § 416.967(a), in that she could lift and
carry ten pounds occasionally and frequently, sit for six hours out of an eight-hour
workday, and stand or walk for two hours out of an eight- hour workday. [Id.] The ALJ
found that Ohmart could never climb ladders, ropes or scaffolds, but could occasionally
climb ramps and stairs; she could occasionally stoop; and she could never kneel, crouch,
or crawl. [Id.] The ALJ also found that Ohmart should avoid operational controls of
moving machinery, unprotected heights, and hazardous machinery, and was able to
perform simple, routine, repetitive tasks. [Id.]
Based on the testimony of a vocational expert, the ALJ found Ohmart could
perform other work as a printed circuit board screener (DOT 726.684-110),
administrative support worker (DOT 209.587-010—addresser), and pharmaceutical
processor (DOT 559.687-034–egg processor). [Tr. 21.]
II.

Discussion
The Commissioner’s findings are reversed “only if they are not supported by

substantial evidence or result from an error of law.

In this substantial-evidence

determination, the entire administrative record is considered but the evidence is not
reweighed. Substantial evidence is less than preponderance, but enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.” Byes v. Astrue,
687 F.3d 913, 915 (8th Cir. 2012).

“In determining whether existing evidence is

substantial, [the Court] consider[s] evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000). “If substantial evidence supports the Commissioner’s conclusions, [the Court]
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does not reverse even if it would reach a different conclusion, or merely because
substantial evidence also supports the contrary outcome.” Byes, 687 F.3d at 915.
Because the ALJ’s decision is supported by substantial evidence, it is affirmed.
A. Overhead reaching
Ohmart argues that the ALJ’s RFC is invalid because the ALJ failed to include an
overhead reaching limitation suggested in medical opinions, did not address certain
opinions and failed to adequately develop the record concerning Ohmarts’ physical
impairments. [Doc. 11, pp. 18-20.]
The three opinions on which Ohmart relies concerning overhead reaching are
Dr. Zarr’s 2007 opinion (which the ALJ gave some weight); a 2007 Occupational
Consulting Services evaluation (which the ALJ did not address); and Dr. Blachar’s
October 2008 letter (which the ALJ did not address). The three opinions were rendered
two or three years prior to the relevant time period and nothing in the record covering the
relevant time period indicates an overhead-reaching restriction is applicable. Therefore,
these opinions do not undermine the RFC.
B. Dr. Essmeyer’s conclusion about Ohmart’s ability to maintain gainful
employment
Ohmart next argues that the ALJ erred when she afforded “little weight” to
Dr. Essmeyer’s 2008 opinion that Ohmart could not maintain gainful employment due to
her multitude of problems, the major underlying factor being psychiatric. [Tr. 19.] The
argument fails because whether a claimant can maintain gainful employment is a matter
reserved to the Commissioner. In any event, this opinion was rendered outside the
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relevant time period and the ALJ’s decision to discount Dr. Essmeyer’s opinion, is
supported by substantial evidence, including Ohmart’s daily activities that included
caring for a child, driving, shopping, and performing household chores. [Tr. 19.]
Finally, the ALJ had no duty to recontact Dr. Essmeyer or further develop the
record on this issue.

Any requirement to supplement medical records pursuant to

20 C.F.R. § 416.912(e), was modified in February 2012, to permit ALJs more flexibility
in determining how best to obtain information to resolve an inconsistency or
insufficiency in the evidence, and allows an ALJ to go to another source for clarification.
See 77 F.R. 10651-01 (Feb. 23, 2012) (“We are modifying the requirement to recontact
your medical source(s) first when we need to resolve an inconsistency or insufficiency in
the evidence he or she provided. Depending on the nature of the inconsistency or
insufficiency, there may be other, more appropriate sources from whom we could obtain
the information we need. By giving adjudicators more flexibility in determining how best
to obtain this information, we will be able to make a determination or decision on
disability claims more quickly and efficiently in certain situations.”).

There is no

indication here that the ALJ found Dr. Essmeyer’s opinion unclear. But even if she had,
she was not required to recontact Dr. Essmeyer.
Ohmart cites Fabela v. Astrue, 2013 WL 353038 *1 (W.D. Mo. 2013), in which a
court relied on SSR 96-5p (1996) to conclude that the treating physicians should have
been contacted again. But that opinion did not address the modification of 20 C.F.R.
§ 416.912(e), and therefore does not persuade the Court that it would be applicable here.

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C. Psychological evaluations
Ohmart next argues that the ALJ should have discussed the opinion of Dr. Hutson
which was rendered in October 2007 in connection with Ohmart’s prior SSI application.
In that opinon Dr. Hutson found that Ohmart had a moderate limitation in her social
interaction and Ohmart contends this limitation was not addressed in the ALJ’s RFC.
However, Dr. Hutson’s opinion was rendered outside the time period relevant to this
appeal.

Further, the record contains the opinion of Dr. Bucklew, a psychological

consultant who prepared a mental RFC in November 2010 in connection with Ohmart’s
instant application. Dr. Bucklew opined that Ohmart had only mild limitations in her
social interactions [Tr. 20.]

The ALJ gave significant weight to Dr. Bucklew’s

conclusion that Ohmart was only mildly limited in her social interaction. The ALJ also
found that Ohmart is generally described as pleasant and exhibiting adequate social skills;
spends time with people every day; takes her children to the park; and spends time with
friends and family. [Tr. 18.] Given the record as a whole, the ALJ’s RFC is supported
by substantial evidence, and the ALJ did not err by disregarding Dr. Hutson’s opinion
from a different relevant time period.
D. The 2007 State disability determination
Ohmart’s argument that the ALJ erred when she gave “little weight” to the 2007
opinion of Dr. Harden and APRN Lesseig also fails.

They examined Ohmart for

purposes of completing a disability certification for the Missouri Department of Social
Services. Whether a claimant is disabled under state law is not binding on the Secretary;
a decision about disability is a matter reserved to the Secretary. Cruze v. Chater, 85 F.3d
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1320, 1325 (8th Cir. 1996); 20 C.F.R. § 416.912(e). In addition, the state standards they
applied [see Tr. 513-517] are different from the standards applied to an SSI claim.
Moreover, Dr. Harden and APRN Lesseig limited the duration of Ohmart’s incapacity to
6-12 months [Tr. 513-14], which passed long ago.
E. Remaining arguments
Ohmart argues that the ALJ committed error in determining that Ohmart’s fatigue
was not a medically determinable impairment; and that her carpal tunnel syndrome is
“non-severe.” [Tr. 14.]
At the second step of the sequential evaluation process, the ALJ must determine
whether the claimant has a severe impairment or combination of impairments that lasted
or is expected to last for at least twelve months. See 20 C.F.R. §§ 416.909 and
416.920(a)(4)(ii). The impairment “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques…and must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [the claimant’s]
statement of symptoms [.]” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting
20 C.F.R. § 404.1508). A medically determinable impairment is “severe” if it more than
minimally affects the claimant’s ability to perform basic work activities, and “[i]t is the
claimant’s burden to establish that his [or her] impairment or combination of impairments
are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). While “[s]everity is not
an onerous requirement for the claimant to meet,…it is also not a toothless standard, and

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[the Eighth Circuit] ha[s] upheld on numerous occasions the Commissioner’s finding that
a claimant failed to make this showing.” Id. at 708.
Ohmart does not make any showing that her alleged fatigue is medically
determinable. She did not mention it at the hearing. She points to a 2009 sleep study that
the ALJ considered unremarkable. [Tr. 14.] The study showed Ohmart did not require
supplemental oxygen or CPAP therapy or have sleep apnea, and that her EEG was
normal.

[Tr.1015-1020]. It did show REM sleep patterns consistent with sleep

deprivation or withdrawal from a REM-sleep suppressing agent, or both. [Tr. 1003.]
There is no evidence that the physican who ordered it or whom she saw the next several
years treated her based upon the study. And Ohmart does not explain in what way
additional RFC limitations, if any, are allegedly attributable to fatigue.
As for carpal tunnel syndrome, the ALJ acknowledged its mention in the record,
but noted Ohmart did not receive any treatment for it during the relevant time period.
[Tr. 14.] In her Function Report of August 2010, Ohmart was asked what assistive
devices she used. She checked the box for glasses and left blank the box for braces or
splints. [Tr. 150.] She did not describe problems related to carpal tunnel syndrome at the
hearing. Whether Ohmart received treatment for carpal tunnel syndrome in 2008, from a
physician who noted Ohmart “may be a symptom magnifier,” [Tr. 852] is not evidence
requiring reversal. The ALJ’s conclusion that Ohmart’s carpal tunnel syndrome was nonsevere is supported by substantial evidence.
The Court has reviewed, and rejects, Ohmart’s remaining argument that the ALJ
failed to sufficiently consider her other non-severe impairments of migraines, asthma and
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Chron’s disease. [Doc. 11, pp. 23-24.] An ALJ has sufficiently considered impairments in
combination when she has separately discussed each impairment. Martise v. Astrue, 641
F.3d 909, 923 (8th Cir. 2011). Here, the ALJ specficially and separately discussed them
and based her conclusion on substantial evidence. [Tr. 14.]
III.

Conclusion
For the reasons set forth above, the Commissioner’s decision is affirmed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 28, 2014
Jefferson City, Missouri

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