Cheney v. Astrue
Filing
16
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 1/22/13 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
EMMA CHENEY,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
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Case No.
11-3426-CV-S-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Emma Cheney seeks review of the final decision of the Commissioner of Social
Security denying plaintiff’s application for disability benefits under Title II of the Social
Security Act (“the Act”). Plaintiff argues that the ALJ erred in (1) finding that plaintiff does
not suffer from a severe impairment, and (2) improperly determining plaintiff’s residual
functional capacity. 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 April 10, 2009, plaintiff applied for disability benefits alleging that she had been
disabled since December 15, 2006. Plaintiff’s disability stems from myelomalacia (softening
of the spinal cord), osteophytes (bone spurs) in her cervical spine, short term memory loss,
high blood pressure, high cholesterol, and depression. Plaintiff’s application was denied on
May 28, 2009. On November 9, 2010, a hearing was held before Administrative Law Judge
Linda Carter. On December 2, 2010, the ALJ found that plaintiff was not under a “disability”
as defined in the Act. On September 2, 2011, 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 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
2
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 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. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. 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.
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 Terri D.
Crawford in addition to documentary evidence admitted at the hearing.
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A.
EARNINGS RECORD
The record shows that plaintiff earned the following income from 1965 through 2010:
Year
Earnings
Year
Earnings
1965
$ 249.49
1988
$ 7,114.11
1966
0.00
1989
5,660.08
1967
1,047.01
1990
7,416.85
1968
1,702.51
1991
6,772.42
1969
267.68
1992
797.13
1970
2,738.26
1993
0.00
1971
216.25
1994
0.00
1972
0.00
1995
2,832.00
1973
0.00
1996
5,664.42
1974
0.00
1997
4,784.65
1975
0.00
1998
5,065.00
1976
0.00
1999
4,752.38
1977
0.00
2000
3,862.45
1978
0.00
2001
6,560.46
1979
0.00
2002
4,628.00
1980
0.00
2003
0.00
1981
0.00
2004
0.00
1982
0.00
2005
0.00
1983
0.00
2006
424.50
1984
1,050.58
2007
0.00
1985
0.00
2008
0.00
1986
226.00
2009
0.00
1987
5,187.00
2010
0.00
(Tr. at 164).
B.
SUMMARY OF MEDICAL RECORDS
On April 20, 2005, plaintiff saw Dr. Michael Ball at Ozark Family Health Care (Tr. at
210). She reported pain in her neck, shoulder and back. This was three days after a motor
vehicle accident. Plaintiff said she had taken ibuprofen but it was not helping the pain. Dr.
4
Ball prescribed Mobic (a non-steriodal anti-inflammatory), Skelaxin (a muscle relaxer), and
Vicodin (a narcotic pain reliever).
On April 27, 2005, plaintiff returned to Dr. Ball for a follow up and reported that she
was still sore (Tr. at 210). Dr. Ball ordered a magnetic resonance imaging (MRI) scan of her
neck which showed disc protrusion with accompanying bone spurs at several levels (Tr. at
252-253). There was also some softening of her spinal cord at two levels (Tr. at 253).
Dr. Ball discussed the MRI findings with plaintiff at a follow-up appointment on May
13, 2005 (Tr. at 209). She reported she was “doing about the same.” Dr. Ball diagnosed
cervical pain and refilled her Mobic, Skelaxin and Vicodin.
Plaintiff did not return to Ozark Family Health Care (Tr. at 233). More than a year
later, on June 15, 2006, plaintiff saw Mindy Kendrick, APRN, at Doctor’s Hospital of
Springfield, to establish care (Tr. at 223-224). She reported that she had fallen and hurt her
right arm, and her fingertips had been numb for the past two weeks. She also reported
dizziness. She was smoking one pack of cigarettes per day. An x-ray of her right arm was
negative. She had a mass on her right elbow that she said had been there for a couple of
years. Her musculoskeletal/extremities exam was normal including range of motion, she was
neurologically intact, and her psychiatric exam was normal. Her sensation, strength, and gait
were normal. An MRI of her brain and neck was recommended. She was assessed with
cervical radiculopathy, dizziness (vertigo was suspected), right elbow mass, and elevated
blood pressure. She was given a prescription for Meclizine (treats nausea associated with
motion sickness) and Celebrex (non-steroidal anti-inflammatory).
Two months later, on August 14, 2006, plaintiff returned to see Ms. Kendrick for blood
work (Tr. at 221-222). She said she had not had the MRI of her cervical spine and brain
done. She said she saw an orthopedist about her right elbow but was going to put off doing
anything “until September.” Plaintiff denied any symptoms (including dizziness) except
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elevated blood pressure, and she said she had an appointment on September 5, 2006, for her
elbow. No musculoskeletal exam was done, and no musculoskeletal complaints were made.
Plaintiff was assessed with right elbow mass, hypertension, and cervical radiculopathy. She
was prescribed metoprolol for hypertension.
December 16, 2006, is plaintiff’s alleged onset date. The following record printed in
blue represents plaintiff’s medical care from her alleged onset date until her last insured date.
On April 13, 2007, seven months after her last medical appointment, plaintiff went to
Doctor’s Hospital for a follow up and for medication refills (Tr. at 219-220). She continued to
smoke one pack of cigarettes per day. She denied chest pain, shortness of breath, any
respiratory symptoms or any gastrointestinal symptoms. Her mental and physical exams were
normal except for the mass on her right elbow. She was assessed with hypertension,
hyperlipidemia (high cholesterol), and right elbow mass. She was told to keep taking her
blood pressure medicine and add an aspirin a day. She was referred to Dr. Rotton; however,
there are no records from Dr. Rotton in this file.
December 31, 2007, is plaintiff’s last insured date.
On April 10, 2008, one year after her last medical appointment, plaintiff returned to
Ozarks Community Hospital, formerly Doctor’s Hospital, for another medication refill (Tr. at
217-218). Plaintiff complained of osteoarthritis pain at multiple sites from her degenerative
disc disease and said that Ibuprofen had not been working. She also complained of fatigue.
There were no complaints of numbness or dizziness. The nurse practitioner assessed back
pain (degenerative disc disease), neck pain, hypertension and hyperlipidemia. She prescribed
Darvocet (narcotic) for pain and refilled plaintiff’s metoprolol for hypertension. Plaintiff was
instructed to follow up in one month.
Four months later, on August 5, 2008, plaintiff returned to Ozarks Community
Hospital for fasting lab work (Tr. at 216). She was assessed with hypertension and
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hyperlipidemia. There were no complaints or findings related to any pain, numbness or
dizziness.
Four months later, on December 8, 2008, plaintiff returned to Ozarks Community
Hospital for a flu shot (Tr. at 215). She complained only of coughing and congestion.
Plaintiff was assessed with bronchitis, elevated cholesterol, nicotine addiction and
hypertension.
On April 10, 2009, plaintiff filed her application for disability benefits.
On May 28, 2009, Kenneth Burstin, Ph.D., a non-examining state agency psychologist,
completed a Psychiatric Review Technique (Tr. at 235-245). He found that plaintiff had no
medically determinable mental impairment. In support of his findings, he wrote:
This 58-year-old claimant has alleged disability due to Myelomalacia, osteophytes,
short term memory loss, high blood pressure, high cholesterol, and depression. AOD
[alleged onset date] is 12/15/06 with DLI [date last insured] of 12/31/07 for this DIB
(only) claim.
Medical evidence has been collected for the relevant time period and does not establish
a mental impairment and where noted, psych status was noted to have been normal.
Records do not establish an MDI [medically determinable impairment], much less a
disabling impairment, for the time period under consideration. However, an
insufficient-evidence determination is being made, as one of her reported sources
indicated that there were no records available for time period in question, at odds with
claimant’s report of being treated in 2006 by this source.
On July 9, 2009, seven months after her last medical appointment, plaintiff was seen
at Ozarks Community Hospital for fasting labs (Tr. at 265). Plaintiff reported that she was
having trouble getting to sleep and staying asleep and that she was tired all the time. She said
her partner has restless leg syndrome. Plaintiff reported a history of chronic neck pain and
requested an MRI. Ms. Kendrick observed that plaintiff’s gait was steady, she had no
peripheral edema, her heart was normal, her lungs were normal, she was alert and oriented
times three and dressed appropriately. Plaintiff continued to smoke. Ms. Kendrick assessed
hypertension, fatigue, chronic neck pain, and hyperlipidemia. She ordered blood work and
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told plaintiff to follow up in one to two weeks to go over the lab results and discuss plaintiff’s
neck pain. “Consider MRI.”
A chest x-ray was taken on July 9, 2009 (Tr. at 267). Carl Reiger, M.D., reviewed the
films and assessed obstructive pulmonary disease,1 and a small pulmonary nodule.2
On July 16, 2009, plaintiff returned to Ozarks Community Hospital for a CT scan of
the chest due to the small pulmonary nodule found on her x-ray (Tr. at 266). Aortic and
coronary atherosclerosis3 was observed. Plaintiff was scheduled for a stress test due to the
atherosclerosis, her history of hypertension and hyperlipidemia, and the fact that she was still
a smoker.
On August 6, 2009, plaintiff was seen by James Rice, M.D., a cardiologist, who noted
that plaintiff had had an abnormal stress test (Tr. at 260-262). “Patient denies pain relating
to the reason for this office visit.” Plaintiff’s stress test shows probable inferior ischemia4 and
an ejection fraction of 70%.5 Dr. Rice noted plaintiff’s fibrotic changes in both lungs. “She
states that she has not been very active. She states that she cannot walk very far because of
1
Airflow during exhaling is blocked making it increasingly difficulty to breathe.
2
A solitary pulmonary nodule is a round or oval spot (lesion) in the lungs that is seen with
a chest x-ray or CT scan. More than half of all solitary pulmonary nodules are noncancerous
(benign). Benign nodules have many causes, including old scars and infections. Infectious
granulomas (reactions to a past infection) cause most benign lesions.
3
Hardening of the arteries caused by plaque build up.
4
Inferior ischemia means loss of blood supply to the inferior wall of the left ventricle.
5
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.
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knee pain. She occasionally drinks alcohol but denies excessive use.” Plaintiff continued to
smoke about a pack of cigarettes per day. Plaintiff denied malaise, fatigue, frequent
headaches, visual changes, blurred vision, double vision, vision loss, hearing loss, dyspnea
(shortness of breath), arthralgias (joint pain), myalgias (muscle pain), muscle cramps, chronic
back pain, and chronic neck pain. She denied vertigo, impaired memory, difficulty speaking,
depression, and insomnia. Plaintiff’s exam was normal. Dr. Rice observed that plaintiff had
normal muscle strength bilaterally and normal affect, answering all questions appropriately;
and she was alert and oriented times three. He assessed abnormal stress test, unstable angina
(chest pain), hypercholesterolemia, hypertension, and tobacco abuse. He scheduled her for an
angiogram and an echocardiogram and told her to take an aspirin a day. He prescribed
Lovastatin (reduces cholesterol) and metoprolol (for hypertension).
On August 6, 2009, plaintiff had an echocardiogram (Tr. at 257-258). Plaintiff had a
mildly dilated left atrium, but her estimated left ventricle ejection fraction was normal at 60%
(see footnote 5) and the rest of the test was normal.
On September 9, 2009, plaintiff was seen by Josh Borgstadt, a physician’s assistant in
the cardiology unit at Ferrell-Duncan Clinic (Tr. at 255-256). Mr. Borgstadt noted that
plaintiff had had an angiography which showed a blocked right coronary artery. “It was
thought to be best treated medically. She is doing well and feeling much better. She is not
having any exertional symptoms.” Plaintiff’s exam was normal. Mr. Borgstadt assessed
coronary artery disease, recommended regular exercise with walking and a low-cholesterol
diet, and told her to return in six months for a follow up. He prescribed simvastatin (to
reduce cholesterol), aspirin (as a blood thinner), nitroglycerin (as needed for chest pain), and
metoprolol (for hypertension).
On October 1, 2009, plaintiff returned to Ozarks Community Hospital for lab work
and a flu shot (Tr. at 264). The examiner observed that plaintiff’s heart rate and rhythm were
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normal, her lungs were clear to auscultation, she was alert and oriented times three, and she
was well dressed. She continued to smoke a half a pack of cigarettes per day and had not
taken her Metformin that day. She was assessed with coronary artery disease, hypertension
and hyperlipidemia. She received a flu shot, was told to start taking Metformin, was
prescribed metoprolol for hypertension and simvastatin for elevated cholesterol, was told to
stop smoking and engage in a healthy lifestyle.
Seven months later, plaintiff went to the cardiology unit at Ferrell-Duncan Clinic and
saw Josh Borgstadt, PA, to discuss paperwork for her disability claim (Tr. at 274-275). “She is
here to fill out paperwork for disability. She didn’t take her medications today so her BP [blood
pressure] is high. She denies chest pains but has shortness of breath.” Plaintiff’s exam was
normal. She was assessed with hypertension, hypercholesterolemia, and coronary artery
disease. She was told to continue the present plan of care which included simvastatin,
metoprolol, aspirin, metformin, and nitroglycerin as needed. “Discussed dietary habits and
encouraged healthy eating patterns. . . . Discussed current exercise routine and benefits of
regular exercise. . . . Assessed current cardiac risk factors and discussed options to decrease
risk. Discussed benefits of heart healthy diet and regular exercise. Discussed options to
maximize control of lipids [fat in the blood, such as cholesterol]. Discussed importance of
optimal blood pressure control and methods to achieve.”
On May 14, 2010, nine months after his only visit with plaintiff, Dr. Rice completed a
Medical Source Statement - Physical checklist (Tr. at 269-270). He found that plaintiff could
lift five pounds, stand or walk for 15 minutes at a time and less than one hour per day, sit for
15 minutes at a time and for less than one hour per day, that she could not push or pull “to
[sic] much weight”. He found that she could never climb, balance, stoop, kneel, crouch,
crawl, or finger. He found that she could occasionally reach, handle, and feel. She could
never speak. She could never hear. She could only occasionally see. There was nothing that
10
she could do frequently. He found that she should avoid any exposure to extreme cold,
extreme heat, dust, fumes, hazards and heights. He found that she should avoid moderate
exposure to weather, wetness, humidity, and vibration. He found that she needs to lie down
three times a day but failed to indicate for how long each time. He indicated that he did not
know whether her medication caused any side effects or any decrease in concentration,
persistence or pace. The final typed line of the form says, “Does this Medical Source Statement
describe limitations that have prevented the client from being able to sustain full time
employment prior to 12/31/2007?” and he wrote, “yes” (Tr. at 270). However, Dr. Rice
never saw plaintiff prior to December 31, 2007 -- his only visit with plaintiff occurred on
August 6, 2009.
On July 1, 2010, nine months after her last visit to Ozarks Community Hospital,
plaintiff returned for updated lab work with Ms. Kendrick (Tr. at 272). She reported some
symptoms of depression and anxiety. She denied chest pain and shortness of breath. There
were no reported pain symptoms. Her exam was normal, including her heart and lungs. She
was assessed with depression, anxiety, hypertension, hyperlipidemia and tobacco abuse. She
was given prescriptions for Celexa (treats depression) and Vistaril (treats anxiety).
On October 5, 2010, plaintiff returned to see Ms. Kendrick for lab work and to receive
a flu shot (Tr. at 277). Plaintiff denied chest pain and unusual shortness of breath. Plaintiff’s
heart and lungs were normal and she was alert and oriented times three. She continued to
smoke a pack of cigarettes per day. She was assessed with chronic obstructive pulmonary
disease, tobacco abuse, and vitamin D deficiency. “Discussed smoking cessation. Patient not
ready to quit.”
On October 10, 2010, plaintiff saw Dr. Rice at Ferrell-Duncan Clinic for a follow up
(Tr. at 280-283). Plaintiff denied any chest pain other than one episode of a burning
sensation. “She has no exertional pain.” She reported some mild shortness of breath, but
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continued to smoke. Plaintiff denied malaise, fatigue, and dyspnea on exertion. Her exam was
normal. Plaintiff was assessed with tobacco abuse, hypertension, hypercholesterolemia,
coronary artery atherosclerosis. “We informed her of the risks of tobacco abuse. She needs to
quit smoking.” Her hypertension was listed as well controlled. “We offered her Chantix6
however she declined this and she is going to try patches.”
C.
SUMMARY OF TESTIMONY
During the November 9, 2010, hearing, plaintiff testified; and Terri D. Crawford, a
vocational expert, testified at the request of the ALJ.
1.
Plaintiff’s testimony.
At the time of the hearing, plaintiff was 60 years of age and is currently 62 (Tr. at 31).
Plaintiff went to school through 8th grade but subsequently earned a GED (Tr. at 31). She is
5'3" tall and weighs 158 pounds (Tr. at 31). Plaintiff lived in an apartment with her boy
friend (Tr. at 39-40).
Plaintiff was injured in a car accident on April 15, 2005 (Tr. at 33). Since the accident
plaintiff has had a lot of problems with her neck, lower back, and right hip (Tr. at 33).
Plaintiff went to Dr. Ball who did an MRI and said no surgery or physical therapy would do
any good and it was going to be something she would have to learn to live with, that it would
continue to get worse (Tr. at 33-34). Since then it has gotten worse (Tr. at 34). Plaintiff’s
neck did not used to hurt all the time, but now it does (Tr. at 34). Plaintiff has pain in her
neck, her lower back, her right hip, her hands and her wrists (Tr. at 34). Plaintiff’s neck pain
is a 9 on a scale of 1 to 10 (Tr. at 34). On December 31, 2007, plaintiff’s neck pain was not
quite as bad (Tr. at 34). Plaintiff’s right hip pain started about four years earlier (Tr. at 35).
Plaintiff wrist and hand pain is about an 8 on a scale of 1 to 10 (Tr. at 37). Her pain was not
quite that bad before December 31, 2007 (Tr. at 37). Her hand and wrist pain was probably
6
A medication to assist with smoking cessation.
12
a six back in 2007 (Tr. at 38). She did have problems lifting things in 2007 because her
wrists would give out (Tr. at 38).
Plaintiff suffers from shoulder pain associated with her injury, and sometimes she
cannot lift her arms over her head (Tr. at 38). Sometimes she cannot even put a shirt on (Tr.
at 38). Her pain is worse in her right shoulder and hand, which is her dominant hand (Tr. at
38). Plaintiff has a mass on her elbow that, at the time of the hearing, was “getting to where
it’s causing pain” (Tr. at 39).
Plaintiff has not had treatment for her neck or back since 2005 because she was
unable to make her appointment for an MRI and “just [has]n’t gotten another one done yet.”
(Tr. at 42-43). Plaintiff has asked her doctor to set one up, but she has not done it yet (Tr. at
43). Plaintiff has insurance through the VA but a lot of doctors do not take it so she has had
difficulty receiving treatment in the past (Tr. at 43). Plaintiff was treated with Celebrex in
2005 for pain in her right arm; however, plaintiff has never sought any pain medication for
her neck (Tr. at 44). “I like to keep my brain intact and it just numbs the brain, it don’t heal
the problem.” (Tr. at 44). Because plaintiff’s doctor told her that taking pain medications was
her only treatment option and she does not personally care for pain medication, she did not
seek treatment for her neck pain (Tr. at 49-50).
Plaintiff cannot lift anything that is too heavy (less than five pounds), she drops her
coffee cup sometimes, and sometimes she has to lift her right arm up with her left hand (Tr. at
35-36). No doctor has ever talked to plaintiff about limiting the amount of weight she lifts
(Tr. at 43). Plaintiff can sit about ten minutes before her pain becomes “really unbearable”
(Tr. at 36). She has to keep repositioning herself and she squirms a lot (Tr. at 36). She can
walk for maybe ten minutes at a time (Tr. at 37).
Plaintiff does not have a driver’s license -- it was suspended in January 2007 due to
drinking and driving (Tr. at 32). She leaves her house about once a week to see her children
13
or go to the doctor (Tr. at 39). Plaintiff’s boy friend does the grocery shopping (Tr. at 39).
Although plaintiff can pop something in the microwave, her boy friend does the cooking (Tr.
at 40). Plaintiff’s boy friend does the laundry (Tr. at 40). Plaintiff is not able to sweep or
vacuum (Tr. at 40). Plaintiff’s boy friend takes the trash out (Tr. at 40-41). Plaintiff
described an average day as follows: “Sitting, standing -- and then I go [lie] down about three
times a day -- and take -- try to [lie] down about an hour each time.” (Tr. at 41). Plaintiff gets
about six hours of sleep each night, and she tries to nap during the day (Tr. at 41). Although
plaintiff is still in pain while lying down, she puts a round pillow under her neck which helps
some (Tr. at 42).
Plaintiff used to bowl, but she is unable to do that anymore (Tr. at 42). She used to
enjoy dancing but can no longer do that either (Tr. at 42).
Plaintiff takes a lot of medication (Tr. at 32). She may experience a little dizziness as a
side effect, but nothing else (Tr. at 32). She believes that is from her metformin which she
began taking about a year before the hearing (Tr. at 32-33).
2.
Vocational expert testimony.
Vocational expert Terri Crawford testified at the request of the Administrative Law
Judge. None of plaintiff’s past work amounted to substantial gainful activity (Tr. at 45-46).
The first hypothetical involved a person who could do medium work but should avoid
climbing or exposure to significant unprotected heights, potentially dangerous and/or
unguarded moving machine, commercial driving, uneven surfaces, extreme vibration, and
would need a climate-controlled work environment to avoid extremes of cold and humidity
(Tr. at 46-47). The vocational expert testified that such a person could be a child monitor,
DOT 301.677-010, with 197,000 jobs in the country and 4,700 in Missouri (Tr. at 47). The
person could also be a stocker, DOT 222.387-058, with 54,000 jobs in the country, and
1,200 in Missouri (Tr. at 47).
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The next hypothetical was the same as the first except the person was unable to lift
more than ten pounds occasionally and five pounds frequently with her dominant arm (Tr. at
49). The vocational expert testified that such a restriction would eliminate all medium
exertional work (Tr. at 49).
V.
FINDINGS OF THE ALJ
Administrative Law Judge Linda Carter entered her opinion on December 2, 2010 (Tr.
at 12-20).
Step one. Plaintiff did not engage in substantial gainful activity from her alleged onset
date (December 15, 2007) through her last insured date (December 31, 2007) (Tr. at 14).
Step two. Plaintiff has the following medically determinable impairments:
myelomalacia of the spinal cord and osteophytes of the cervical spine (Tr. at 14). However,
these impairments are not severe because they do not significantly limit plaintiff’s ability to
perform basic work-related activities for 12 consecutive months (Tr. at 14). Therefore, since
plaintiff does not have a severe impairment, she was found not disabled at step two of the
sequential analysis (Tr. at 17).
Step three. Alternatively, the ALJ assumed the plaintiff’s myelomalacia and osteophytes
of the cervical spine were severe impairments, but that her hypertension, hyperlipidemia, and
right elbow mass were still nonsevere (Tr. at 17). Her severe impairments would not meet or
equal a listed impairment (Tr. at 17-18).
Step four. Plaintiff retained the residual functional capacity to perform the full range
of work at all exertional levels but with the following nonexertional limitations: She would
have needed to avoid climbing of or exposure to significant unprotected heights, potentially
dangerous and/or unguarded moving machinery, and commercial driving; she would have
needed an even surface upon which to stand and walk; she would have needed to avoid
extreme exposure to vibration; and she would have required a climate-controlled
15
environment to avoid extremes of cold and humidity (Tr. at 18). Plaintiff has no past relevant
work (Tr. at 19).
Step five. If plaintiff’s impairments were severe prior to her last insured date, there
were jobs that existed in significant numbers in the national economy that plaintiff could have
performed (Tr. at 19). Plaintiff could have worked as a child monitor, with 4,700 positions
in Missouri and 197,000 in the country, or stock clerk, with 1,200 positions in Missouri and
54,000 in the country (Tr. at 19). Therefore, alternatively, even if plaintiff’s impairments
were severe, there is work available she could have performed (Tr. at 20).
VI.
SEVERE IMPAIRMENT
Plaintiff argues that the ALJ erred in finding the plaintiff’s impairment of myelomalacia
of the spinal cord and osteophytes of the cervical spine are non-severe impairments.
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 non-severe 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.
(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;
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(5)
Responding appropriately to supervision, co-workers and usual
work situations; and
(6)
Dealing with changes in a routine work setting.
Plaintiff bears the burden of establishing that an alleged impairment is severe.
Caviness v. Massanari, 250 F.3d 603, 604-605 (8th Cir. 2001). While severity is not an
onerous requirement, it is not a “toothless standard,” and claimants must show more than
minimal interference with basic work activities. Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir.
2007). To be considered severe, 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).
The ALJ’s analysis at the second step of the sequential evaluation included the
following:
The claimant has alleged an inability to work since December 2006. According to the
claimant, she has experienced ongoing pain, particularly in her neck, back, right hip,
hands, and arms. She allegedly is only able to lift 5 pounds, sit 10 minutes, and stand
or walk 10 minutes. She also has to lie down three times per day for an hour each
time due to pain. The claimant further testified that she has experienced a painful
right elbow mass; she has pain in her hands and wrists; and due to weakness, at times
she has to lift her right arm with her left.
After considering the evidence of record, the undersigned finds that the claimant’s
medically determinable impairments could have been reasonably expected to produce
the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with a finding that the claimant has no severe impairment or
combination of impairments for the reasons explained below.
The record does document the claimant as having a motor vehicle accident in April
2005, for which she did not seek emergent care. She later reported some cervical pain
stemming from her motor vehicle accident and imaging did reveal cervical spine
osteophytes as well as some myelomalacia in her spinal cord. However, she did not
seek ongoing regular treatment for such. Although she has indicated some financial
difficulties in obtaining regular treatment, the undersigned notes that the claimant was
able to maintain a long-term habit of smoking one pack of cigarettes per day. There is
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also no evidence that she fully availed herself of available resources prior to her date
last insured, including medical assistance, free clinics, or emergent care. Regardless,
even when she has sought treatment, the record is devoid of any evidence showing a
significant degree of muscle atrophy, muscle spasm, sensory or motor loss, reflex
abnormality, gait disturbance, or significantly reduced range of motion of the spine or
joints, particularly prior to her date last insured, but even thereafter. Additionally, the
claimant did not report to providers as significant a level of symptoms or limitations as
she has alleged herein, either before her date last insured or after. In particular, there
are no documented reports of the need to lie down due to pain multiple times per day
nor are there ongoing reports of difficulties dropping items or an inability to dress
herself at times. The claimant has also not been prescribed pain modalities such as a
neck brace or an assistive device for ambulation, and she has never been referred by a
physician to a pain management clinic notwithstanding her allegations of debilitating
pain. Furthermore, she has not required ongoing pain medications allegedly because
he does not like to take pain medications. She has also not required aggressive medical
treatment, frequent hospital confinement, or surgical intervention to address her
alleged pain symptoms.
The record also documents diagnoses of hypertension, hyperlipidemia, and a right
elbow mass. However, the record does not document significant symptoms nor has the
claimant undergone aggressive or extraordinary treatment for any of these conditions.
In fact, most of these conditions are rarely mentioned throughout her medical [history],
particularly prior to her date last insured. The claimant has also not alleged significant
symptoms or limitations stemming from these conditions. Although she has indicated
some pain associated with her right elbow mass, the claimant testified that this has
been more recent as it did not cause pain previously. For these reasons, these
impairments, considered singly and in combination, do not cause more than a minimal
limitation in the claimant’s ability to perform basic work activities and are therefore
nonsevere.
In May 2010, James Rice, M.D., a completed a Medical Source Statement - Physical in
which he assessed the claimant with limitations that would preclude her from
completing a normal 8-hour workday. The undersigned acknowledges that a treating
physician’s medical opinion of the nature and severity of a claimant’s impairment may
be given great weight if it is well supported and not inconsistent with other substantial
evidence in the case record. However, it may be discounted if it is inconsistent with
the evidence and record as a whole, and is unsupported by the evidence. Dr. Rice’s
opinions are not supported by any treatment notes or by the results of clinical or
diagnostic testing and are inconsistent with the evidence as a whole. Dr. Rice has not
submitted any reports that would reveal the type of significant clinical and laboratory
abnormalities one would expect if the claimant were in fact as limited as he has
indicated in his Medical Source Statement, and the doctor did not specifically address
this weakness. Furthermore, Dr. Rice indicated that the claimant has had the same
limitations since December 31, 2007, yet there is no indication that Dr. Rice treated
the claimant in 2006 or 2007 nor is there evidence that he reviewed other medical
evidence . . . prior to completing the Medical Source Statement. The record does
document an abnormal stress test in late 2009 but the claimant’s ejection fraction at
60% was normal; the plan was to treat her cardiac condition medically. Further,
according to the treatment records from the date the Medical Source Statement was
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completed, the claimant was actually treated by physician’s assistant Josh Borgstadt and
was seen for the explicit reason of completing disability paperwork on the date of the
statement. For all of these reasons, no weight has been given to Dr. Rice’s medical
source statement.
Considering the record as a whole, the undersigned concludes that the claimant’s
subjective complaints and alleged limitations precluding employment are not fully
persuasive. In addition to the medical evidence of record, the claimant allegedly
engages in extremely limited daily activities, yet she has not reported such to her
providers. Moreover, the claimant is residing with her boyfriend who handles most of
the chores, cooking, and shopping; therefore, there is no indication that the claimant is
unable to perform these activities, rather, she has not had to. As for the claimant’s past
work, the record shows that she had worked only sporadically with no substantial
earnings prior to the alleged disability onset date. All of the issues discussed above
raise a question as to whether the claimant’s continuing unemployment is actually due
to medical impairments and draws into question the claimant’s credibility as a witness
herein. The overall evidence of record supports that the claimant did not have a severe
impairment prior to her date last insured.
(Tr. at 15-17).
Although plaintiff takes issue with the ALJ’s relying on the lack of medical care during
the relevant time, in her brief plaintiff cites only to medical records that either predate her
alleged onset date or postdate her last insured date. As shown above, plaintiff went to the
doctor only one time during the relevant time period:
On April 13, 2007, seven months after her last medical appointment, plaintiff went to
Doctor’s Hospital for a follow up and for medication refills. She continued to smoke
one pack of cigarettes per day. She denied chest pain, shortness of breath, any
respiratory symptoms or any gastrointestinal symptoms. Her mental and physical
exams were normal except for the mass on her right elbow. She was assessed with
hypertension, hyperlipidemia, and right elbow mass. She was told to keep taking her
blood pressure medicine and add an aspirin a day.
Plaintiff did not complain of neck pain, back pain, wrist pain, hand pain, numbness, or
dizziness; she did not mention a need to lie down, instances of dropping things, or the need to
lift one arm with the other due to the inability of her dominant arm to function; she
specifically denied chest pain and shortness of breath. Her exam was normal and she was
continued on her same medications, none of which were for treatment of pain, numbness,
19
fatigue, insomnia, or any other condition or symptom related to her allegedly disabling
impairments.
Plaintiff’s allegation that she did not take pain medication because she is personally
against it is completely implausible. In April 2005, plaintiff was prescribed a narcotic pain
reliever after her car accident. There is nothing in that medical record indicating that
plaintiff had any problem with using pain medication. In April 2008 she was prescribed a
narcotic pain medication after she complained of neck pain. Again, there is nothing in that
medical record indicating that plaintiff had any problem with using pain medication. Those
two prescriptions were given either before plaintiff’s alleged onset date or after her last
insured date. In none of the other medical records is there any recommendation that plaintiff
take medication that she did not care to take with the exception of Chantix, a medication to
assist in smoking cessation. The lack of records showing that her medical providers
recommended plaintiff take pain medication suggests only one thing -- none of them believed
it was needed. Plaintiff did not complain of pain, she specifically denied pain, and for the
most part she was treated for high blood pressure and high cholesterol, not for pain. Her
testimony that her neck pain was a 9 out of 10 in severity is not credible. Her testimony that
her hand and wrist pain is an 8 out of 10 is not credible.
Plaintiff argues that the ALJ failed to acknowledge that plaintiff’s MRI showed not only
myelomalacia of the spinal cord and osteophytes of the cervical spine, but also impingement
on the thecal sac and impingement upon the anterior margin of the spinal canal at C5-6,
spinal cord deformity and spinal canal stenosis at C4-5, and impingement upon the posterior
thecal sac in the posterior margin of the spinal cord from C4 to C6. Although the MRI did
indeed show these conditions, the MRI was taken in April 2005 -- a year and a half before
plaintiff’s alleged onset date. This means that (1) plaintiff was admittedly not disabled for a
year and a half despite having these conditions, and (2) plaintiff’s conditions as shown on the
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MRI caused no limitations in FUNCTION, as plaintiff did not complain to any doctor, nurse or
physician’s assistant of any difficulty sitting, standing, walking, reaching, lifting,
remembering, holding onto things, etc., during the relevant time period. Merely having the
condition is irrelevant if the condition does not somehow limit plaintiff’s ability to perform
basic work activities. Collins ex rel. Williams v. Barnhart, 335 F.3d 726, 730-731 (8th Cir.
2003). In this case there is no evidence that plaintiff’s spinal conditions as noted by the
radiologist affected her ability to perform basic work activities.
Plaintiff argues that the ALJ improperly found plaintiff not credible and as a result
relied on that improper finding in deciding that plaintiff does not suffer from a severe
impairment. Plaintiff’s argument is without merit. Plaintiff’s employment history shows that
she has never earned substantial gainful activity even during the decades before her alleged
onset date, suggesting that she continues to be unemployed for a reason other than her
impairments. Plaintiff testified that her daily activities do not include many household chores
because her boy friend does them -- because “he’s a good guy,” not because plaintiff is unable.
Her inability to drive is due to her license having been revoked for drinking and driving, not
because any of her impairments would interfere with her ability to drive.
Plaintiff never reported to any doctor a need to lie down, nor did any doctor ever
recommend that plaintiff lie down. On the contrary, plaintiff’s treating doctors routinely told
her to get regular exercise including walking. Plaintiff never told any doctor that she drops
things or that her dominant arm sometimes will not work on its own. Plaintiff did not report
to any doctor that she experiences pain while sitting, standing or walking. She did not tell any
doctor that she had problems with lifting or dressing herself.
Plaintiff was not on any pain medication during the relevant time period. No doctor
ever recommended that she take pain medication. No doctor ever recommended that she limit
her activities in any way, rather they consistently encouraged her to get regular exercise.
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Plaintiff never indicated any side effects to any doctor which would limit her physical or
mental ability to perform basic work activity. Plaintiff’s treatment did not change during the
relevant period, indicating that her medications were controlling her symptoms (medications
which treat only conditions that do not allegedly cause any pain or dysfunction).
The ALJ adequately addressed the factors addressed by Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984), and Social Security Ruling 96-7p, and properly found plaintiff’s
testimony not credible.
Plaintiff argues that the ALJ improperly discounted plaintiff’s difficulty obtaining
treatment due to finances. However, the record indicates that plaintiff had health insurance
during the relevant time period;7 and even when plaintiff did go to the doctor, she did not
complain of the disabling symptoms she now claims she had. She did not complain of neck
pain, back pain, wrist pain, hip pain, numb hands or wrists, an inability to hold onto things,
an inability to lift her arm, a need to lie down multiple times per day. She went to the doctor
for flu shots, for cold symptoms, for follow-up visits on high cholesterol and high blood
pressure. There is no reason to believe that if plaintiff were suffering from disabling pain and
other disabling symptoms, she would fail to mention those symptoms to her doctor when she
was able to scrape together the money for a medical appointment. A claimant’s complaints of
functional limitations are inconsistent with the failure to seek regular medical treatment for
those symptoms. Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997); Ostronski v. Chater, 94
F.3d 413, 419 (8th Cir. 1996). Plaintiff claims the ALJ improperly relied on the fact that
plaintiff spent her money on cigarettes instead of medical care, but the Eighth Circuit has
7
Although plaintiff testified that she had trouble finding providers who would take her
insurance, the medical records do not support this allegation. There is no indication anywhere
in the records that plaintiff tried to see any doctor or have any procedure but was unable to do
so because of a problem with her insurance.
22
indicated that such a consideration is proper. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir.
1999).
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’s impairments were not severe because there is no
evidence that plaintiff’s impairments affected her ability to perform basic work activities.
VII.
CONCLUSIONS
Plaintiff also argues that the ALJ’s alternative finding at step five was improper because
the residual functional capacity assessment was made without obtaining any opinion from a
medical source and provided no exertional limitations. Because I find that the substantial
evidence in the record supports the ALJ’s finding that plaintiff’s impairments are not severe,
plaintiff’s arguments regarding the ALJ’s alternative holding are irrelevant.
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s decision finding plaintiff not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
January 22, 2013
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