Andersen v Astrue

Filing 22

MEMORANDUM OPINION affirming the Commissioner's denial of Andersen's disability benefits and supplemental social security income benefits claim. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
SUSAN M. ANDERSEN,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

4:10CV3144

MEMORANDUM OPINION

This matter is before the Court for judicial review of
a final decision of the defendant Commissioner of the Social
Security Administration (“Commissioner”) pursuant to 42 U.S.C.
§§ 405(g), 1382(c)(3) of the Social Security Act (the “Act”).
The Commissioner denied Susan M. Andersen’s (Andersen)
application for disability benefits and supplemental social
security income benefits, finding Andersen was not under a
disability from February 2, 2001, the alleged onset date, through
August 25, 2009, the date of the Administrative Law Judge’s
(“ALJ”) final opinion.
Andersen alleges she has been disabled since February
2, 2001, based on her back and leg pain and depression (Tr. 37,
54, 90).1

Andersen filed a brief (Filing No. 17) and a reply

brief (Filing No. 21) in support of this administrative appeal.

1

Andersen does not challenge the ALJ’s finding that her
depression was not severe; thus Andersen’s mental health records
and/or condition will not be discussed in this memorandum.

The Commissioner filed the administrative record (“Tr.”) and a
brief (Filing No. 20) in opposition.

In her appeal, Andersen

asks that her case be reversed and benefits awarded or remanded
for three reasons: (1) the ALJ failed to accord adequate weight
to the opinion of Andersen’s treating physician, Mohsin Khan,
M.D.; (2) the ALJ did not properly explain his findings regarding
the credibility of Andersen; and (3) the ALJ committed an error
of law by relying on an improper hypothetical question when
examining the vocational expert (“VE”).

Upon review, the Court

finds the Commissioner’s decision is supported by substantial
evidence and should be affirmed.
I. BACKGROUND
Andersen was born in 1953 (Tr. 37).
general equivalency degree in 1995 (Tr. 58).

She received her
She worked as a

welder, certified nurse’s assistant, cook, driver, home health
aide, and most recently as an order clerk at her son’s body shop
until May 30, 2000 (Tr. 55, 89).

She left her position as an

order clerk not because of her alleged disability, but because
she “couldn’t get along with [her] son’s wife” (Tr. 55).

At the

time Andersen filed for benefits, she lived in her own low-income
apartment in Lexington, Nebraska, and reported that she was “in
the process of going to live with her aged parents [in Eddyville,
Nebraska] and help take care of them” (Tr. 111, 113).
of last insured is June 20, 2005 (Tr. 15).

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Her date

A. Medical Records
On July 11, 2001, five months after Andersen’s alleged
onset date, Andersen presented to her primary care physician Pat
Unterseher, M.D., with complaints of low back pain related to
coccygdynia (Tr. 110).

After unsuccessful treatment of her

condition with pain medications and injections and a worsening of
the associated pain due to a slip and fall on the ice, Andersen
underwent surgical removal of her tailbone on June 10, 2002 (Tr.
96-98, 110, 127, 175).

The surgery was performed by Doak

Doolittle, M.D., at Tri-County Area Hospital in Lexington,
Nebraska (Tr. 96).

The surgery was completed without

complication, and Andersen was discharged the same day with a
prescription for Darvocet (Tr. 96).
Two months later, on August 27, 2002, Andersen reported
to Dr. Unterseher for follow-up (Tr. 106).

Andersen did not

complain of ongoing back pain; however, she reported only that
she was concerned she had an infection in her lower back where
she had surgery (Tr. 106).

Dr. Unterseher noted there was no

evidence of an infection and recommended Andersen soak in the
bathtub twice daily (Tr. 106).
Nine months later, on May 15, 2003, Andersen returned
to Dr. Unterseher with complaints of chest pain and tightness,
“some back pain,” and swollen, tender feet (Tr. 103).

On

examination, Andersen’s heart rate and rhythm were regular, and

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an EKG and chest x-ray were normal (Tr. 99-100, 103).

X-rays of

her feet also revealed no fractures or dislocations (Tr. 103).
Dr. Unterseher assessed generalized edema, chest pain, and back
pain, and prescribed Darvocet and Maxzide (Tr. 103).
On August 23, 2005, Andersen presented to Mark Jones,
M.D., for a disability examination (Tr. 117-21).

At the time of

the examination, Andersen had not sought medical treatment for
any sort of pain in two years (Tr. 117).

Andersen told Dr. Jones

that she had back pain with prolonged sitting, standing, and
walking, but said she treated her pain with only Tylenol (Tr.
117).

On examination, Andersen had a good range of motion and

strength in her arms and legs and could get up and down from the
examination table without difficulty (Tr. 118).

Andersen showed

a little tenderness in her lower back and moved with a little
discomfort (Tr. 118).

X-rays of the area, however, only revealed

a “real low grade L4-5 spondylolisthesis [and an] otherwise
unremarkable lumbar spine” (Tr. 118).
On September 6, 2005, Andersen called Dr. Jones
complaining of hip and back pain; Dr. Jones gave her a
prescription for Ultram per verbal order (Tr. 125).

On September

24, 2005, Andersen returned to Dr. Jones with complaints of pain
in the right buttock that worked down the leg (Tr. 123-24).

On

examination, Andersen appeared lethargic and slow, but had normal
muscle strength and range of motion throughout her legs (Tr. 123-

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24).

Dr. Jones assessed sciatica and prescribed Prednisone (Tr.

124).

On October 10, 2005, Dr. Jones prescribed Darvocet again

by verbal order (126).
Meanwhile, at the request of the state on September 2,
2005, and October 31, 2005, Glen Knosp, M.D., and J. Reed., M.D.,
state Disability Determination Service physicians, completed
physical residual functional capacity (“RFC”) assessments based
on review of Andersen’s file (Tr. 143-53).

Drs. Knosp and Reed

opined, based on their review of Andersen’s medical records, that
Andersen could perform some medium exertion-level work and was
not disabled (Tr. 144-53).

They opined Andersen could lift and

carry 50 pounds occasionally and 25 pounds frequently, and sit,
stand, and walk six hours in an eight-hour workday (Tr. 144,
146).

They also opined Andersen could balance and climb ramps

and stairs frequently, and that Andersen could occasionally
stoop, kneel, crouch, crawl, and climb ladders, ropes, and
scaffolds (Tr. 144, 147).
On May 5, 2008, Andersen saw Dr. Khan in consultation
for back pain and right hip and leg pain (Tr. 154-59).

At the

time of the examination, Andersen had not sought medical
treatment for any sort of pain in more than two years (Tr. 15449).

Examinations were positive for leg swelling and an antalgic

gait (Tr. 154, 158).

Dr. Khan ordered a lumbar spine MRI, nerve

conduction study, and EMG, which revealed evidence of an acute

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right L5 radiculopathy and sublaxation at L4-L5, but no stenosis
(Tr. 154-157).

Dr. Khan also gave Andersen a Medrol Dosepak for

temporary relief (Tr. 154).

After only two treatment sessions,

Dr. Khan referred Andersen to neurosurgeon Chinyere Obasi, M.D.,
for a neurological assessment (Tr. 154).
On May 19, 2008, Andersen saw Dr. Obasi (Tr. 163-165).
Andersen continued to complain of back pain that radiated into
her right leg (Tr. 163).

She also reported having tingling and

numbness in her right leg (Tr. 163).

Andersen reported her

ability to change positions and Darvocet had provided her some
relief from pain, but claimed her pain worsened with lifting,
walking, or prolonged sitting (Tr. 163).

On examination,

Andersen had normal strength throughout her arms and legs (Tr.
164).

Straight-leg raises, however, were positive for pain (Tr.

164).

Dr. Obasi reviewed plaintiff’s lumbar spine MRI, noting

that it showed subluxation at L4-L5 “with mild central canal
stenosis at this level and moderate lateral recessed stenosis to
the right side at this level” (Tr. 164).

Based on this

evaluation, Dr. Obasi prescribed Darvocet and referred Andersen
to the pain management physician at Good Samaritan Hospital,
Kevin Balter, M.D.

Dr. Obasi told Andersen she should undergo

treatment with a pain management specialist before he would
consider surgery (Tr. 164).

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Meanwhile, on June 12, 2008, Dr. Khan completed a
medical source statement (Tr. 160).

The statement indicates Dr.

Khan only treated Andersen between May 5, 2008, and May 15, 2008
(Tr. 160).

Dr. Khan opined that Andersen could not stand for six

hours or alternate between sitting and standing for eight hours
(Tr. 160).

He also opined that Andersen could not climb, kneel,

crouch, or crawl, and that Andersen could only occasionally
stoop, balance, reach overhead, or walk on uneven surfaces (Tr.
161).

Finally, he said Andersen’s pain prevented her from

concentrating 90 percent of the day (Tr. 162).
Andersen presented to Dr. Balter on July 25, 2008, on
referral from Dr. Obasi (Tr. 174).

Andersen reported to Dr.

Balter that she had “slowed down significantly” due to her pain,
and that her pain was worse with prolonged sitting, standing, and
walking (Tr. 174).

Dr. Balter diagnosed Andersen with sacroiliac

joint arthralgia and lumbar facet arthralgia (Tr. 19).

Dr.

Balter recommended treatment with steroid injections and water
aerobics (Tr. 178).

During the next month, plaintiff returned to

Dr. Balter for three rounds of steroid injections (Tr. 166-173).
B. Andersen’s Reported Daily Activities and Symptoms
In July of 2005, Andersen completed a Supplemental
Disability Report in which she indicated she could read, write,
and understand English (Tr. 54).

She also reported she still

performed various household chores, including watering the lawn,

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cooking for herself, washing dishes, and doing laundry, but could
no longer “play and skate” with her grandchildren (Tr. 64-65,
66).

She also reported she could drive and go to the store when

needed, and that she enjoyed doing crafts for 30 minutes at a
time and watching television and using the computer for three or
four hours a day (Tr. 65).

Andersen also reported she had no

trouble sleeping through the night, and that she did not nap
during the day (Tr. 66).

Finally, Andersen indicated that she

was taking Tylenol for relief of her pain (Tr. 66).
That same month, during a consultative psychological
evaluation conducted in connection with her disability
application, Andersen reported that she was not taking any pain
medication “for fear of becoming addicted” (Tr. 111).

Andersen

reported she gambles a lot and goes to the Indian casino in
Kansas with her mother-in-law where she plays the slots (Tr.
113).

Andersen admitted her “gambling could become a problem if

she let it” (Tr. 113).

Anderson also reported she babysits her

granddaughter, plans on moving in with her parents to help take
care of them, shops frequently, plays games and looks up
genealogy on her computer, and enjoys reading mysteries, love
stories, and the encyclopedia (Tr. 113).
Andersen has been widowed for over 15 years (Tr. 176).
She claims to have gained over 100 pounds since becoming a widow,
weighing 238 pounds as of 2008 (Tr. 174-75).

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Andersen denies

current alcohol or drug use, although she used to have issues
with alcohol; but admitted in 2008 she smokes at least a half a
pack of cigarettes a day (Tr. 113, 175).
At her June 8, 2009, hearing, Andersen testified she
could not sit or stand for six hours because her legs go numb
(Tr. 20, 204-05).

Instead, she testified she could only sit for

one hour before having to get up and move around, and that she
could only stand for one-half hour at a time, or for a total of
three hours in an eight-hour workday (Tr. 206-07).

Finally, she

testified she takes Tylenol and Aleve for pain, and Darvocet for
sleep (Tr. 205).
C. Procedural Background
Andersen filed an application for disability benefits
and supplemental security income benefits on June 30, 2005 (Tr.
40).

The Commissioner denied benefits initially and on

reconsideration, and benefits were denied by an ALJ (Tr. 4).
Andersen requested review by the Appeals Council on August 28,
2008 (Tr. 36).

The Appeals Council granted the request for

review and remanded the case to the ALJ with directions (Tr. 26).

On June 8, 2009, the ALJ held a hearing (Tr. 185).

Andersen

was represented by counsel and testified, and Thomas Dashalet, a
VE, and Walter Doren, M.D., a board-certified orthopedic surgeon/
medical expert, also testified (Tr. 185).

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Dr. Doren testified at Anderson’s hearing that he had
reviewed the medical records in this case, but did not see a
report from Dr. Obasi (Tr. 191-92).

Dr. Doren noted that the

records, however, did include a lumbar spine MRI and EMG, which
revealed an L5 radiculopathy, but no spinal stenosis (Tr. 19296).

Based on the records he reviewed, Dr. Doren testified that

Andersen could lift 25 to 35 pounds occasionally and 10 to 15
pounds frequently, provided she was lifting with her legs and did
not have to bend over when lifting (Tr. 197, 200).

Dr. Doren

also testified that he believed Andersen could sit, stand, and
walk six hours each during an eight-hour workday, provided
Andersen could change positions every one to two hours (Tr. 19798).

Dr. Doren also believed, however, Andersen should not

crawl, but testified Andersen could perform occasional bending,
stair climbing, stooping, kneeling, and crouching, and frequent
balancing (Tr. 197-98).

Finally, Dr. Doren testified that

Andersen would need to avoid moderate exposures to hazards, such
as moving machinery and unprotected heights (Tr. 198).
The ALJ then posed two hypothetical questions to the VE
(Tr. 210-13).

The first question asked whether an individual

with the limitations described by Dr. Doren could perform work as
an order clerk (Tr. 211-12).
“Yes” (Tr. 212).

The vocational expert answered

The second question asked whether an individual

with the limitations described by Dr. Khan in his 2008 medical

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source statement could perform any of Andersen’s past relevant
work or other jobs (Tr. 212-13).

The vocational expert answered

“No” (Tr. 213).
On August 25, 2009, the ALJ issued an opinion and
determined Andersen was not disabled under the Act at any time
from the alleged onset date, February 2, 2001, to the date of his
decision.
In evaluating Andersen’s claim, the ALJ followed the
five-step sequential evaluation process set forth in 20 C.F.R.
§ 404.1520(a).2

At step one, the ALJ found that Andersen has

2

The ALJ performs the following five-step sequential
analysis to determine whether a claimant is disabled:
At the first step, the claimant must
establish that [she] has not engaged in
substantial gainful activity. The second
step requires that the claimant prove [she]
has a severe impairment that significantly
limits [her] physical or mental ability to
perform basic work activities. If, at the
third step, the claimant shows that [her]
impairment meets or equals a presumptively
disabling impairment listed in the
regulations, the analysis stops and the
claimant is automatically found disabled and
is entitled to benefits. If the claimant
cannot carry this burden, however, step four
requires that the claimant prove [she] lacks
the RFC to perform [her] past relevant work.
Finally, if the claimant establishes that
[she] cannot perform [her] past relevant
work, the burden shifts to the Commissioner
at the fifth step to prove that there are
other jobs in the national economy that the
claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
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not engaged in substantial gainful activity since her alleged
onset date (Tr. 17).

At step two, the ALJ found Andersen had the

severe medical impairment of degenerative disc disease (Tr. 17).
At step three, the ALJ found Andersen’s impairment does not meet
or medically equal one of the listed presumptively disabling
impairments (Tr. 18).

At step four, the ALJ found that Andersen

has a RFC of performing work that falls between light and mediumexertion levels, and is thus capable of performing her past
relevant light work as an order clerk (Tr. 18-21).

Because the

ALJ found that Andersen could return to past relevant work at
step four, he made no finding at step five.

The Appeals Council

denied Andersen’s request for review of the ALJ’s decision on May
27, 2010; therefore, the ALJ’s decision stands as the final
decision of the Commissioner (Tr. 7-10).
II. DISCUSSION
A. Standard of Review
When reviewing an ALJ’s decision, the Court must
determine whether the ALJ’s decision complies with the relevant
law and is supported by substantial evidence in the record as a
whole.

Martise v. Astrue, 641 F.3d 909, 920 (8th Cir. 2011).

Substantial evidence is:
relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
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review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
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.
Id. at 920-21 (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).

“‘If, after reviewing the record, the court

finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’”

Partee v.

Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).

The Court may not

reverse the ALJ’s decision merely because the Court would have
come to a different conclusion.
614 (8th Cir. 2011).
disability.

Teague v. Astrue, 638 F.3d 611,

Plaintiff bears the burden of proving

Id. at 615.

B. Substantial Evidence Exists Supporting the ALJ’s Decision
1. The ALJ Accorded Adequate Weight to the Opinion of
Dr. Khan
Andersen’s first assignment of error is that the ALJ
impermissibly discounted the opinion of Dr. Khan, who opined
Andersen was not capable of performing sedentary light work.
Generally, a treating physician’s opinion is entitled to
substantial weight.

Martise, 641 F.3d at 925 (quoting Brown v.
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Astrue, 611 F.3d 941, 951-52 (8th Cir. 2011)).

However, “an ALJ

need not defer to such an opinion when it is inconsistent with
substantial evidence in the record.”

Strongson v. Barnhart, 361

F.3d 1066, 1070 (8th Cir. 2004); 20 C.F.R. § 404.1527(d).

The

ALJ determined other aspects of the record were inconsistent with
Dr. Kahn’s opinion of Andersen’s inability to perform light work.
These inconsistencies included Dr. Doren’s opinion that Andersen
could perform light sedentary work, the fact that Andersen’s MRI
did not show any compression or stenosis or other significant
abnormality which would account for the severe functional
limitations Dr. Kahn assigned, the fact that Andersen does not
take “heavy duty” pain medications for her symptoms, and the fact
that to present date, surgery has not been recommended for
Andersen’s condition.
Considering that Dr. Doren is a board-certified
orthopedic surgeon, Dr. Khan only saw Andersen twice for
treatment, and the other above-listed inconsistencies of the
record, the ALJ properly deferred to Dr. Doren’s opinion in
accordance with 20 C.F.R. § 404.1627(d)(1-6).

Andersen claims

that because Dr. Doren did not review Dr. Obasi’s medical
records, his opinion should not be given greater weight than Dr.
Khan’s.

The fact that Dr. Doren did not review Dr. Obasi’s

medical records, however, is harmless.

Dr. Doren completed his

own individual assessment of Andersen’s MRI and EMG, finding no

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stenosis, which was consistent with Dr. Kahn’s review of the MRI
and EMG –- even after Dr. Khan reviewed Dr. Obasi’s finding of
mild to moderate stenosis pursuant to his review of the MRI and
EMG.

Ultimately then, Dr. Doren and Dr. Khan came to similar

medical conclusions, but assigned different limitations.

If “the

court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.”
at 863 (quotation omitted).

Partee, 638

The Court concludes the ALJ accorded

adequate weight to the opinion of Dr. Kahn.
Andersen further claims the ALJ erred in crediting Dr.
Doren’s opinion because the reason Andersen did not treat with
“heavy duty” pain medications was because she feared becoming
addicted and surgery “may” be a possibility for her in the
future.

The Court finds, regardless if either of these claims

has merit, based on Andersen’s daily activities discussed in
Section II.B.2 and the significant gaps in time in Andersen’s
course of seeking medical attention for her alleged disability,
the ALJ’s reliance on Dr. Doren’s opinion is appropriately based
on the totality of the evidence.

See Edwards v. Barnhart, 314

F.3d 964, 967-68 (8th Cir. 2002) (“It was within the province of
the ALJ to discount [claimant’s] claims of disabling pain in view
of her failure to seek ameliorative treatment.”).

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2. The ALJ Properly Explained His Findings Regarding
Andersen’s Credibility
Andersen next argues the ALJ improperly determined she
was not credible and thus erred in failing to give her statements
regarding her decision not to take pain medications in fear of
becoming addicted and the alleged pain and numbness of her leg,
buttock, and shoulders proper weight.

An ALJ’s credibility

findings must be supported by substantial evidence.

Guilliams v.

Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (The court defers to
the ALJ’s credibility finding if it is supported by good reasons
and substantial evidence).
subjective complaint . . . .

“An ALJ may not reject a claimant’s
But an ALJ may take the claimant’s

medical records into account when determining his or her
credibility, and may discount the claimant’s subjective
complaints if there are inconsistencies in the record as a
whole.”

Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007)

(citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
Here, the ALJ recognized the Polaski considerations, and took
into account Andersen’s testimony concerning her daily
activities, dosage of pain medications, the lack of restrictions
placed on her activities, as well as her medical records, before
deciding that her statements regarding her inability to work were
not credible.

See id.

As discussed in Section II.B.1, the ALJ found
Andersen’s subjective complaints of pain were not substantiated
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by the objective medical records in evidence.

Also, as Andersen

has been able to do housekeeping and frequent shopping, and has
continued social activities, including out-of-state gambling
excursions, the ALJ found Andersen’s impairments are not as
limiting as alleged.

See e.g., Roberson, 481 F.3d at 1025.

Furthermore, as Andersen admitted she continues to care for her
granddaughter and parents and plays on the computer for up to
three or four hours a day and enjoys crafts, the Court concludes
the ALJ’s credibility finding is based on substantial evidence of
the record.

See id.

3. The ALJ Properly Relied on Vocational Expert
Testimony
In this case, the ALJ posed two questions to the VE at
Andersen’s hearing, and relied on the VE’s response to the
hypothetical based upon Dr. Doren’s opinion that Andersen could
perform past relevant work as an order clerk.

Although Andersen

correctly observes that the ALJ did not include Dr. Kahn’s
recommended limitations in this hypothetical, the ALJ was not
required to do so for the reasons discussed in Section II.B.1 and
2 of this opinion.

After reviewing the record as a whole, the

Court finds substantial evidence supports the ALJ’s conclusion
that Andersen could perform past relevant work as an order clerk.
III. CONCLUSION
Substantial evidence in the record as a whole supports
the ALJ’s determination that Andersen was not disabled, and the
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ALJ’s decision complies with the relevant law.

The

Commissioner’s denial of Andersen’s disability benefits and
supplemental social security income benefits claim will be
affirmed.

A separate order will be entered in accordance with

this memorandum opinion
DATED this 23rd day of August, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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