Arnold v. Astrue

Filing 13

ORDER by Judge David P. Rush affirming the decision of the Commissioner (Elayer, Glenda)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
LAWRENCE RAYMOND ARNOLD,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

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Case No. 11-3541-CV-DPR

MEMORANDUM AND ORDER
An Administrative Law Judge (“ALJ”) denied Social Security Disability Insurance
Benefits and Supplemental Security Income to Plaintiff Lawrence Arnold in a decision dated June
24, 2010 (Tr. 9-17). The Appeals Counsel denied review (Tr. 1-3). Thus, the ALJ’s decision
became the Commissioner of Social Security’s final decision denying Social Security Disability
benefits. See 42 U.S.C. § 405(g); 20 C.F.R. § 416.1481. For the reasons set forth below, the
decision of the Commissioner of Social Security is AFFIRMED.
FACTUAL BACKGROUND
Claimant Arnold sought disability benefits alleging arthritis, a skin disorder, hepatitis, a
neck injury, and post traumatic stress disorder. Arnold alleged the onset of his disability from
November 15, 2007. He claimed past work as a construction contractor (Tr. 164).
Medical Records
Arnold’s medical records show that he sustained a gunshot wound while serving in
Vietnam in 1968. A bullet entered his right shoulder and exited his left shoulder. He has
experienced neck, left shoulder, and left arm pain and numbness since the injury (Tr. 231).

Arnold was medically evaluated at the Veterans Administration Medical Center in
Fayetteville, Arkansas in May 2008. Records show that he continued to experience left neck and
shoulder pain, stiffness, and weakness, with a limited range of motion. It was determined that
degenerative joint disease of the shoulder and elbow caused Arnold only mild problems, but the
accompanying muscle weakness caused moderate and severe difficulties with the activities of
daily living (Tr. 231-38). It was determined that his muscle weakness severely limited his ability
to do chores, go shopping, exercise, participate in sports, recreate, feed himself, and groom
himself; and moderately limited his ability to travel, bathe, dress, and toilet (Tr. 238).
Testing and evaluation also revealed limited range of motion in the cervical spine, with
disc space narrowing and significant degenerative disc disease at C5-6. Examination of the
lumbar spine revealed narrowing on the L5-S1 disc space, moderate osteophytic changes from L2S1, and sclerosis of the lumbar facet joints throughout the lumbar spine bilaterally (Tr. 239-245).
Arnold also suffers from chronic rashes on his hands. In November 2007, he saw Robert
Scott, M.D., his primary care physician, who assessed his skin rash as “stable” (Tr. 278). Dr.
Scott referred Arnold to Dr. Jay Pearcy, a dermatologist, for treatment of the rash (Tr. 285). On
September 4, 2008, Dr. Pearcy opined that Arnold suffered from either eczema or psoriasis of the
hands. He recommended that Arnold stop taking Atenolol because it could be causally related to
the rash.1 Dr. Pearcy prescribed Clobetasol ointment (Tr. 344-45). On October 16, 2008, Arnold
reported to Dr. Pearcy that he had not used the Clobetasol very much because it was very greasy.
Dr. Pearcy noted little improvement in his hands. He prescribed Clobex lotion in addition to the
Clobetasol ointment (Tr. 242-43). On February 6, 2009, Dr. Pearcy reported the Clobex lotion
1

Atenolol is used to treat high blood pressure, prevent chest pain, and improve survival after a
heart attack. Atenolol is classified as a beta blocker, which relaxes blood vessels and shows heart
rate to improve blood flow. MEDLINE PLUS, http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a684031.html (last visited March 25, 2013).

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was working “very well.” He noted Arnold continued to have problems with his fingertips. He
also noted Arnold’s prescribing physician had removed him from Atenolol.

Dr. Pearcy

recommended that Arnold continue to use Clobex lotion (Tr. 340-41). The medical records
indicate that Arnold did not see Dr. Pearcy again for over a year, until February 19, 2010. Arnold
reported he continued to use Clobetasol ointment and Clobex lotion.

Arnold complained,

however, that his feet had also broken out, causing him difficulty standing for long periods of
time. Dr. Pearcy diagnosed him with “Psoriasis greater than eczema” and prescribed Ultravate
ointment (Tr. 338-39).
Arnold saw Roger Cady, M.D., on October 28, 2008. Dr. Cady reported that Arnold “was
seen by a dermatologist who felt that the skin rash he is having in his hands could be secondary to
his beta-blocker.” Dr. Cady agreed to “wean him off” the beta-blocker (Tr. 300). On January 19,
2009, Dr. Cady noted Arnold’s recent difficulty with fine motor control and decreased sensation in
his left hand. Dr. Cady also noted “deep fissures that are painful” in both of his hands. Dr. Cady
noted “moderate” improvement with Clobex lotion. Dr. Cady reported that after stopping the
Atenolol, Arnold’s hands improved significantly, “but subsequently [he] has had recurrence of the
lesions.” Dr. Cady also noted continued left shoulder pain for which Arnold takes Celebrex (Tr.
303). On March 19, 2009, Dr. Cady also prescribed Bag Balm with hydrocortisone for his hands
(Tr. 359).
Arnold was seen at the University of Missouri Dermatology Clinic in June 2009. The
physician notes document his history of cracking and bleeding hands for one and one half years,
and treatment with Clobex lotion, hydrocortisone, udder balm, emu cream, and multiple over-thecounter lotions and creams. The report indicates that Arnold played golf “a lot,” and had very
tanned skin. It was recommended that Arnold continue Clobetasol, soak his hands, and wear
gloves to bed after night-time application of ointment (Tr. 334-35).

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On December 9, 2009, Arnold saw Michael Hoeman, M.D. at the Wheeler Heart &
Vascular Center in Springfield, Missouri, for a comprehensive evaluation. Dr. Hoeman noted
hypertension, hyperlipidemia, mild glucose intolerance, chronic head and neck pain related to
degenerative joint disease. Regarding the rash, Dr. Hoeman noted Clobetasol seemed to “work
well for him” (Tr. 323).
On March 25, 2010, Dr. Cady evaluated Arnold for a disability rating. Dr. Cady noted a
clear and alert mental status, a large scar on the left side of his neck from the gunshot wound about
which he stated, “He is exquisitely sensitive and hypersensitive in this area.” Dr. Cady noted
“marked eczema-type reaction that is under care with a dermatologist.” Regarding Arnold’s left
shoulder and arm, Dr. Cady stated,
He has clear evidence of brachial plexus injury with decreased biceps and
brachioradialis reflex. Decreased pinprick sensation in the left arm. Also, strength
is markedly decreased. Examination of lower extremities reveals some modest
weakness on the left. DTRs are equal in the lower extremities.
Dr. Cady concluded, “My impression is that he continues to suffer from medical impairment
related to gunshot and subsequent brachial plexus injury incurred while he was in Vietnam. This
clearly affects his ability to be fully employed” (Tr. 357).
Medical Opinions
Dr. Cady also completed a Medical Source Statement (MSS). He recommended that
Arnold could frequently lift less than five pounds with his left arm, but 25 pounds frequently with
his right. He opined that Arnold could occasionally lift and carry less than five pounds with his
left arm, but over fifty pounds with his right. He recommended that Arnold could stand and walk
continuously for an hour at a time, and for a total of four hours in an eight-hour day. He opined
Arnold could sit for thirty minutes at a time, and for less than one hour total in an eight-hour work
day. He could push and pull an unlimited amount with his right arm and leg, but had decreased

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strength in his left side for pushing and pulling. He determined that Arnold could never climb,
balance, stoop, kneel, or crouch, but could occasionally crawl; could never reach with his left
hand, but occasionally with his right; could never handle with his left hand, but frequently with his
right; could never finger or feel with his left hand but frequently with his right; could never see
with near acuity, frequently see with far acuity, and occasionally see with depth perception;
frequently speak; and occasionally hear. He advised that Arnold should avoid any exposure to
extreme cold, dust, or fumes; hazards and heights; avoid moderate exposure to weather, wetness
and humidity, and vibration, and should avoid concentrated exposure to extreme heat.

He

recommended that Arnold would be required to lie down or recline to alleviate pain every fifteen
minutes for ten minutes at a time. He recommended that Arnold’s pain would cause a decrease in
his ability to concentrate (Tr. 377-78).
ALJ Opinion
The ALJ found that Arnold had the following severe impairments: hypertension;
hyperlipidemia; eczema; psoriasis; degenerative joint disease of the cervical and lumbar spine; and
a left brachial plexus injury secondary to gunshot wound (Tr. 11). The ALJ found that the
claimant does not suffer from an impairment or combination of impairments that meet or
medically equal a listed impairment. He determined that Arnold had the residual functional
capacity (RFC) to perform light work as defined in the regulations, except that he cannot
repetitively push and/or pull with the upper extremities, has only limited extension of the left
shoulder, and limited neck flexion. He can crawl, stoop, squat, and kneel occasionally, climb
frequently, power grip occasionally, handle, finger, and feel frequently; but he does not possess
the fine motor skills to handle small items such as jeweler’s tools. In finding this RFC, the ALJ
found that Arnold’s complaints of total incapacitation were unsupported by the medical and other
evidence in the record.

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Further, the ALJ afforded little weight to the opinion of Dr. Cady. The ALJ recognized
that Dr. Cady was a treating source, but found his assessment inconsistent with his own treatment
notes and with the overall medical record which does not support the “extreme degree of
incapacity found in Dr. Cady’s Medical Source Statement” (Tr. 16). Finally, the ALJ found that
Arnold was capable of performing past relevant work as a contractor.
ALJ Hearing
Arnold appeared at the hearing held May 17, 2010, with counsel. He testified that he takes
Celebrex for the pain in his neck and shoulder, but receives no other treatment. He testified that
he mows his lawn with a riding lawnmower, and trims weeds, but must take breaks every two
hours. He testified that he plays golf twice a week, as exercise for his neck and shoulder. He
testified that the pain and numbness in his fingers (presumably from the rash) does not interfere
with playing golf because he grips the club with his palm. He testified that his hands and feet
break out, causing sores and ruptured skin. He testified that he cannot stand very long in one
position due to the sores on his feet. He also has difficulty holding onto items without dropping
them. Regarding the pain in his neck and left shoulder, Arnold testified that the pain comes and
goes, sometimes for days, but other times he will go a week without pain. He testified his ability
to move his neck is limited by pain. He testified that because of his painful rash, he is unable to
button buttons. He testified that he experiences low back pain daily. He is unable to sit for more
than two hours at a time without having to get up and stretch or move around. He testified that he
lies down for four hours in an eight-hour day. He testified he still has nightmares about his service
in Vietnam. Based on a hypothetical posed by the ALJ, a vocational expert testified at the hearing
that Arnold was capable of doing his past work as a contractor.

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LEGAL STANDARDS
To receive disability benefits, a claimant must be “disabled.” A disabled person is one
whose physical or mental impairments result from anatomical, physiological, or psychological
abnormalities which can be demonstrated by medically acceptable clinical and laboratory
diagnostic techniques and which prevent the person from performing previous work and any other
kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(1)(A),
423(d)(2)(A), 1382c(a)(3)(B), 1382c(a)(3)(D).
The Social Security regulations provide for a five-step sequential inquiry for determining
whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.

The Commissioner must

consider in sequence: (1) whether the claimant is currently employed and doing substantial gainful
activity, (2) whether the claimant has a severe medically determinable physical or mental
impairment or combination of impairments, (3) whether the impairment meets or equals one listed
by the Commissioner and whether it meets the duration requirement, (4) whether the claimant has
the residual functional capacity to return to doing his or her past work, and (5) whether the
claimant is capable of making an adjustment to some other type of work available in the national
economy. See Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Goff v. Barnhart, 421 F.3d 785,
790 (8th Cir. 2005). If the claimant does not have a listed impairment, but cannot perform his or
her past work, then the burden shifts to the Commissioner at step five to show that the claimant
can perform some other job that exists in the national economy. Id.
Judicial review of a denial of disability benefits is limited to whether there is substantial
evidence on the record as a whole to support the Social Security Administration’s decision. 42
U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Substantial evidence is
“‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. V. NLRB,
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305 U.S. 197, 229 (1938)). “Substantial evidence on the record as a whole,” however, requires
a more exacting analysis, which also takes into account “whatever in the record fairly detracts
from its weight.” Minor, 574 F.3d at 627 (quoting Wilson v. Sullivan, 886 F.2d 172, 175 (8th
Cir. 1989)). Thus, where it is possible to draw two inconsistent conclusions from the evidence,
and one conclusion represents the ALJ’s findings, a court must affirm the decision. See
Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d
1183, 1184 (8th Cir. 1989)). In other words, a court should not disturb an ALJ’s denial of
benefits if the decision “falls within the available zone of choice.” Buckner v. Astrue, 646 F.3d
549, 556 (8th Cir. 2011). A decision may fall within the “zone of choice” even where the court
“might have reached a different conclusion had [the court] been the initial finder of fact.” Id.
(quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)).
Credibility Determination
Arnold argues that the ALJ erred in finding his subjective complaints not credible. In
assessing a claimant’s credibility, an ALJ must consider 1) the claimant’s daily activities; 2) the
duration, intensity, and frequency of pain; 3) the precipitating and aggravating factors; 4) the
dosage, effectiveness, and side effects of medication; 5) any functional restrictions; 6) the
claimant’s work history; and 7) the absence of objective medical evidence to support the
claimant’s complaints. Buckner, 646 F.3d at 558 (quoting Moore v. Astrue, 572 F.3d 520, 524
(8th Cir. 2009)); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). An ALJ is not
required to explicitly discuss each Polaski factor, so long as the ALJ acknowledges and
considers them before discounting a claimant’s subjective complaints. See Wildman v. Astrue,
596 F.3d 959, 968 (8th Cir. 2010). An ALJ may find a claimant’s allegations not credible
where there exist “inconsistencies in the record as a whole.” Id. A court will defer to an ALJ’s

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credibility determination “if the ALJ ‘explicitly discredits a claimant’s testimony and gives a
good reason for doing so.’” Id. (quoting Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)).
Substantial evidence on the record as a whole supports the ALJ’s determination that
Arnold’s subjective complaints are not credible. The ALJ considered the factors set out in
Polaski, including Arnold’s activities, pain, medications, functional limitations, work history,
and available medical evidence.

The ALJ specifically identified inconsistencies between

Arnold’s testimony regarding his pain and his report that he is capable of mowing the lawn and
trimming weeds, and the evidence in the record that Arnold played golf regularly. At the
hearing, the ALJ specifically inquired how often Arnold played golf. Arnold stated twice a
month, but when asked for more details, he stated that he would play golf once during the week
with his wife, then again on Sundays. When the ALJ asked specifically how he was able to play
golf considering his own claims of disability, Arnold stated first that he had no trouble gripping
the club with his palms, then stated that golf is good exercise for his shoulder injury. The ALJ
also noted Arnold has received only conservative treatment with medications, without needing
additional treatment, hospital confinement, or surgical intervention. Furthermore, the record
indicates that Arnold’s pain is well-controlled by Celebrex, and his rashes had improved with
various ointments and creams.

Moreover, despite his complaints of total disability, Arnold

testified that at times a week will pass during which he experiences no pain. In the Court’s
view, these inconsistencies constitute “good reasons” for discounting Arnold’s testimony
regarding the severity of his subjective complaints.

The ALJ could have more specifically

described his findings that Arnold’s subjective complaints lacked credibility, yet, his conclusion
is supported by substantial evidence on the record as a whole and remains within the ALJ’s
“zone of choice.” Thus, the Court finds no basis in the record to overturn the ALJ’s credibility

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determination.
RFC Determination
Arnold argues that the ALJ’s RFC calculation is flawed because the ALJ did not adopt
Dr. Cady’s severe lifting limitations on Arnold’s left arm.

An ALJ’s RFC determination must

be supported by some medical evidence. See Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007)
(citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). But the RFC determination “is not
limited to considering medical evidence exclusively.” Cox, 495 F.3d at 619. “Although medical
source opinions are considered in assessing RFC, the final determination of RFC is left to the
Commissioner.” Ellis, 392 F.3d at 994 (citing 20 C.F.R. § 404.1527(e)(2)).
The Court finds that the ALJ’s RFC determination is based upon substantial evidence in
the record. Dr. Cady recommended that Arnold could lift and carry less than five pounds with
his left arm, but found that he could frequently lift and carry 25 pounds and occasionally lift and
carry 50 pounds with his right arm. The ALJ determined that Arnold was capable of light
work, which “involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighting up to 10 pounds.” 20 C.F.R. § 404.1567(b). The Court does not view the
ALJ’s determination as inconsistent with Dr. Cady’s opinion that Arnold could lift 25 pounds
frequently and 50 pounds occasionally with his right arm. Even if the Court did discern a
contradiction, it would still be proper to uphold the ALJ’s RFC determination. See Wilson v.
Sullivan, 886 F.2d 172, 175 (8th Cir. 1989) (where it is possible to draw two inconsistent
conclusions from evidence, and one conclusion represents ALJ’s findings, court must affirm
ALJ’s decision).
Past Relevant Work
Arnold finally argues that it was improper for the ALJ to determine he was capable of

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performing his past work as a contractor. At step four of the analysis, an ALJ may determine a
claimant is not disabled when he or she “can still perform the actual duties of a past relevant
job.” Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (citing Stephens v. Shalala,
50 F.3d 538, 542 (8th Cir. 1995)). At this point in the analysis, the burden remains on the
claimant to prove he or she is unable to perform past relevant work. Eichelberger, 390 F.3d
591.
In making the determination that Arnold could perform past relevant work, the ALJ
relied on the medical records, his RFC determination, and the testimony of a vocational expert
who determined, based upon a hypothetical question consistent with Arnold’s RFC, that Arnold
was capable of performing his past relevant work as a contractor both as actually performed and
as generally performed in the national economy. An ALJ is entitled to rely on the expertise of a
qualified vocational expert. See Wagner v. Astrue, 499 F.3d 842, 854 (8th Cir. 2007) (citing
Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994)).

Accordingly, the Court finds no

reversible error in the ALJ’s decision that Arnold was capable of performing his past relevant
work as a contractor.
CONCLUSION
Based upon a thorough review of the record, the Court finds the ALJ’s decision is
supported by substantial evidence on the record as a whole. Accordingly, the decision of the
Commissioner of Social Security should be affirmed.
IT IS THEREFORE ORDERED that the decision of the Commissioner of Social
Security is AFFIRMED.
IT IS SO ORDERED.
DATED: March 26, 2013

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/s/ David P. Rush
DAVID P. RUSH
United States Magistrate Judge

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