Kinzie v. Astrue

Filing 30

MEMORANDUM AND ORDER - For the reasons stated, and after careful consideration of each argument presented in Kinzie's brief, I find that the Commissioner's decision is supported by substantial evidence on the record as a whole and is not contrary to law. Judgment shall be entered by separate document providing that the decision of the Commissioner is affirmed. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DODY LEE KINZIE,
Plaintiff,
V.
SOCIAL SECURITY
ADMINISTRATION, Michael J.
Astrue, Commissioner,
Defendant.

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4:10CV3223

MEMORANDUM AND ORDER

Plaintiff Dody Lee Kinzie (“Kinzie”) seeks review of the Commissioner of the Social
Security Administration’s decision to deny her application for disability benefits. For the
following reasons, the Commissioner’s decision will be affirmed.
BACKGROUND
On April 16, 2007, Kinzie applied for benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401, et seq., and for Supplemental Security Income (“SSI”) benefits
under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., alleging that since March 31, 1995,
she has been unable to engage in any type of substantial and gainful work activity due to
debilitating neck pain. Kinzie’s application was denied initially and on reconsideration.
Subsequently, she appealed the denial to an administrative law judge (“ALJ”).
An administrative hearing was held on October 22, 2008, before the ALJ. Kinzie was
present at the hearing and was represented by her former attorney, Kimberly F. Long. Both
Kinzie and Gail F. Leonhardt, a vocational expert, testified at the hearing.
The ALJ issued an unfavorable decision on February 19, 2009, concluding that Kinzie
is not “disabled” within the meaning of the Act. In his decision, the ALJ evaluated Kinzie’s

disability claim by following the five-step sequential analysis prescribed by the Social
Security Regulations. See 20 C.F.R. §§ 404.1520 and 416.920. In doing so, the ALJ found,
in summary, as follows:
1.

Kinzie does not meet the insured status requirements of Title II of the Act for
disability benefits, and last met those requirements and was insured for
disability benefits under Title II of the Act on March 31, 2003. (Tr. 18.)

2.

Kinzie has not performed substantial gainful work activity since March 31,
1995. (Id.)

3.

Kinzie has the following severe impairments: neck pain and joint pain with
osteoarthritis. (Tr. 19.)

4.

Kinzie does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id. (citing 20 C.F.R. §§ 404.1525, 404.1526, 416.925
and 416.926).)

5.

Kinzie has the residual functional capacity1 (“RFC”) to perform the full range
of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (Id.)

6.

Kinzie is capable of performing past relevant work as a housekeeper as this
work does not require the performance of work-related activities precluded by
her residual functional capacity. (Tr. 21.)

7.

Kinzie is not disabled and has not been under a disability, as defined in the
Social Security Act, from March 31, 1995, through February 19, 2009. (Id.)

1

The term “residual functional capacity” describes the type of work a claimant is able
to perform despite limitations caused by the claimant’s impairments. See 20 C.F.R.
§ 404.1545(a).

2

In reaching these conclusions, the ALJ made the following specific finding regarding
the credibility of Kinzie’s testimony during the administrative hearing:
I discount and give no weight to the claimant’s testimony and
subjective complaints in my assessment because I find her not
fully credible.
Although the claimant alleges chronic,
debilitating pain, she has not sought out any medical treatment
in many years. Surely if the claimant experienced a significant
level of pain and functional limitation she would seek out
medical care. In addition, the undersigned notes that the
claimant has indicated that she can perform a fairly full range of
household tasks, which suggests that her complaints of chronic
pain are not credible. Finally, the record indicates that the
claimant has made several attempts to work, and there is no
indication that she stopped working due to her impairments.
These periods of work indicate that the claimant’s subjective
complaints are not entitled to significant evidentiary weight.
(Id. at 20-21.)
Kinzie asked the Appeals Council to review the ALJ’s unfavorable decision, and the
Council granted the request. The Council affirmed the ALJ’s findings 1 through 5. The
Council modified findings 6 and 7 and added findings 8 and 9 as follows:
6.

Kinzie cannot perform past relevant work. (Tr. 11.)

7.

At all times relevant to the hearing decision, Kinzie was a younger individual
with a limited education. Transferability of skills is not currently material.
(Id.)

8.

Kinzie’s medical-vocational profile coincides with the criteria of Rule 202.18
of Table 2 of Appendix 2, Subpart P, 20 C.F.R. Part 404, which directs a
conclusion of not disabled. (Id.)

9.

Kinzie has not been under a disability as defined in the Social Security Act
through the date of the hearing decision (20 C.F.R. §§ 404.1520(g) and
416.920(g)). (Id. at 12.)

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DISCUSSION
A denial of Social Security benefits by the Commissioner will be affirmed “so long
as the Commissioner’s decision . . . ‘is supported by substantial evidence on the record as a
whole.’” England v. Astrue, 490 F.3d 1017, 1019 (8th Cir. 2007) (quoting Reed v. Barnhart,
399 F.3d 917, 920 (8th Cir. 2005)). This standard is “less than a preponderance but . . .
enough that a reasonable mind would find it adequate to support the conclusion.” Jones v.
Astrue, 619 F.3d 963, 968 (8th Cir. 2010). Although the court will “‘consider both evidence
that detracts from and evidence that supports the Commissioner’s decision[,]’” the
Commissioner’s decision will not be reversed merely because substantial evidence supports
a contrary outcome. England, 490 F.3d at 1019 (quoting Stormo v. Barnhart, 377 F.3d 801,
805 (8th Cir. 2004)).
In addition, the court must review the decision of the Commissioner to decide whether
the proper legal standard was applied in reaching the result. Smith v. Sullivan, 982 F.2d 308,
311 (8th Cir. 1992). All issues of law will be reviewed de novo. See Miles v. Barnhart, 374
F.3d 694, 698 (8th Cir. 2004). Findings of fact, however, are considered conclusive if
supported by substantial evidence on the record as a whole. See Renfrow v. Astrue, 496 F.3d
918, 920 (8th Cir. 2007). Further, the court will “defer to the ALJ's determinations regarding
the credibility of testimony, so long as they are supported by good reasons and substantial
evidence.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
The Social Security Administration uses a five-step process to determine whether a
claimant is disabled. See 20 C.F.R. §§ 404.1520 and 416.920.
At the first step, the claimant must establish that he has not
engaged in substantial gainful activity. The second step requires
that the claimant prove he has a severe impairment that
significantly limits his physical or mental ability to perform
basic work activities. If, at the third step, the claimant shows
that his 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

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four requires that the claimant prove he lacks the RFC to
perform his past relevant work. Finally, if the claimant
establishes that he cannot perform his 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).
Here, the Appeals Council affirmed the ALJ’s findings under steps 1, 2, and 3 of the
sequential analysis; namely, that (1) Kinzie has not engaged in substantial gainful activity
since March 31, 1995, (2) Kinzie has severe impairments, and (3) Kinzie’s impairments do
not meet or equal in severity a presumptively disabling impairment listed in the regulations.
(Tr. 10-11.) At step 4 of the analysis, the Appeals Council affirmed the ALJ’s finding that
Kinzie can perform a full range of light work activity, but concluded that the ALJ’s finding
that Kinzie had past relevant work was erroneous. (Tr. 11.) Because the Appeals Council
concluded that Kinzie had no past relevant work, at step 5 of the analysis, the burden shifted
to the Commissioner to show that other jobs exist in significant numbers in the national
economy that Kinzie could perform given her RFC, age, education, and work experience.
(Tr. 11.)
After a review of the record, the Appeals Council concluded that the Commissioner
met this burden. (Tr. 11.) In reaching this conclusion, the Appeals Council relied on the
following facts: Kinzie had the RFC to perform a full range of light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b); at the time of the ALJ’s decision, Kinzie was fortyone years of age, which is considered a younger individual for purposes of this analysis;
Kinzie had a limited education having completed the tenth grade; and Kinzie had acquired
some skills as a certified nursing assistant. (Tr. 11.) Based on these findings, the Appeals
Council found that Kinzie was not disabled and cited the criteria of Rule 202.18 of Table 2
of Appendix 2, Subpart P, 20 C.F.R. Part 404, as dispositive of the issue. (Tr. 11.)
In her appeal, Kinzie argues the following errors: (A) “the ALJ, in his decision left
in place by the Appeals Council, did not properly develop the record by purchasing a
psychological examination which would include IQ testing” and “erred by not fully

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developing the medical record by failing to obtain the report of the X-rays of [Kinzie] . . . .”;
(B) when considering Kinzie’s RFC, the ALJ and Appeals Council erred by failing to
“consider all of [Kinzie’s] medically documented limitations . . . .”; and (C) the ALJ did not
properly apply the factors required under Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)
“when determining the credibility of [Kinzie’s] subjective allegations of her physical and
mental condition as to her limitations, restrictions and work activity.” (Filing 28, Ex. 1 at
CM/ECF pp. 7-8.) The court will address each of the assigned errors in turn.
A.

Failure to further develop the record

Kinzie argues that the ALJ failed to properly develop the record. Specifically, Kinzie
argues that the ALJ should have (1) ordered psychological testing, including an IQ test, (2)
obtained the results of x-rays 2 ordered by Ruilin Wang, M.D., and (3) ordered additional
consultative examinations. (Id. at CM/ECF pp. 10, 11.) The court finds Kinzie’s arguments
in this regard without merit.
The ALJ has a duty to develop the record fully and fairly, however, it is the claimant’s
responsibility to provide medical evidence to show that he or she is disabled. 20 C.F.R. §§
404.1512, 416.912. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (“Although the
record does not show why that evaluation was not completed, [the claimant] has the burden
to offer the evidence necessary to make a valid decision about her claim.”) On appeal,
reversal due to failure to develop the record is only warranted if such failure is unfair or
prejudicial. Onstad v. Shalala, 999 F.2d 1232 (8th Cir. 1993).
In regard to the necessity of an IQ test, Kinzie argues that her IQ may be low enough

2

Dr. Wang performed a consultative examination on Kinzie at the request of the
Disability Determination Section on June 18, 2007, and ordered an x-ray of Kinzie’s neck
(PA and lateral) after making a preliminary diagnosis of chronic neck pain and non-specific
multiple joint pain. (Tr. 90-94.)

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to qualify her for benefits under Listing 12.05C, which requires proof of an IQ under 70.3
In support of her argument, Kinzie points to the fact that she received special education
assistance in high school and only completed the tenth grade, and that her attorney requested
psychological testing for the purpose of having her case considered under the requisites of
Listing 12.05C. The court finds this argument unpersuasive for several reasons. First, and
foremost, the record establishes that Kinzie passed the examination to become a Certified
Nursing Assistant (“CNA”). (Tr. 78, 284.) Further, Kinzie worked as a CNA for three years
in a nursing home. (Tr. 78, 284.) Second, the record establishes that Kinzie functions
independently and requires no significant assistance.

(Tr. 73-77.)

Finally, Kinzie’s

participation in, and, in particular, her ability to testify during the administrative hearing
before the ALJ, serves as evidence of her mental abilities. (Tr. 275-306.) Accordingly, the
court concludes that an IQ test was not essential to develop a full and fair record and,
therefore, Kinzie was not prejudiced by the ALJ’s failure to order such test.
In regard to the neck x-rays ordered by Dr. Wang, the ALJ made a factual finding that
Kinzie never returned to Dr. Wang’s office for the x-rays. (Tr. 20.) This factual finding is
supported by substantial evidence in the record. First, in July of 2007, when the Disability
Determination Section (“DDS”) inquired about the status of the x-rays, Dr. Wang’s office
told DDS that Kinzie never returned to Dr. Wang’s office for the x-rays. (Tr. 97.) Second,
the record indicates that Dr. Wang’s office never billed DDS for an x-ray examination of
Kinzie. (Tr. 96-97.) Finally, Kinzie’s assertion that Dr. Wang’s office did complete the xray examination is unpersuasive because the ALJ specifically found such assertions were not
credible. (Tr. 20); see Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (“This court will
not substitute its opinion for the ALJ’s, who is in a better position to gauge credibility and
resolve conflicts in evidence.”).
Kinzie also appears to argue that Dr. Wang’s consultative examination was
insufficient. (Filing 28, Ex. 1 at CM/ECF p. 10 (“[O]ne such examination was purchased and

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To qualify as disabled under Listing 12.05C, in addition to an IQ under 70, the
claimant must suffer from an additional physical or mental impairment causing significant
work-related limitation. 20 C.F.R. Pt. 404, Subpt. P, App. 1.

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performed by a family practice doctor, but resulted in more questions than answers.”).)
However, Kinzie’s argument in this regard is difficult to discern. Kinzie provided no citation
to the record to support her position that Dr. Wang’s examination “resulted in more questions
than answers” and failed to identify any specific deficiency in Dr. Wang’s report. In short,
Kinzie has pointed to no evidence that the ALJ failed to fully and fairly develop the record
in the instant matter.
B.

Failure to consider all medically documented limitations

Kinzie next argues that the ALJ improperly formulated her RFC by failing to fully
consider Dr. Glen Knosp’s medical opinion relating to Kinzie’s limitations. After reviewing
the record and relevant authority, the court concludes that when determining the RFC in this
case, the ALJ fully considered and gave proper weight to Dr. Knosp’s report.
Dr. Knosp, a medical consultant at the DDS, opined that Kinzie could lift 20 pounds
occasionally and 10 pounds frequently; could stand, walk or sit about 6 hours in an 8-hour
workday; could frequently balance; and could occasionally crawl, crouch, kneel, stoop or
climb. (Tr. 106-07.) Dr. Knosp noted no limitations in reaching, handling, fingering or
feeling and found Kinzie had full muscle strength in her hands and upper extremities. (Tr.
108, 112.) Although Dr. Knosp’s report indicates that Kinzie’s ability to push and/or pull
is limited in upper extremities, when considered in the context of the entire assessment, the
court concludes that this is not inconsistent with the ALJ’s statement that Kinzie “can push
and pull . . . without significant limitation.” (Tr. 20.) Contrary to Kinzie’s argument, the
ALJ’s conclusion that Kinzie can perform a full range of light work is actually supported by
Dr. Knosp’s medical opinion. Other evidence in the record, including, but not limited to,
Kinzie’s lack of medical treatment and her ability to perform light work after her alleged
disability onset date, further supports the ALJ’s RFC determination.
Kinzie also complains that the Appeals Council improperly used the MedicalVocational Guidelines to direct a finding of no disability. Kinzie maintains that her alleged
nonexertional limitations - specifically, “limitations with the use of the upper extremities for
pushing and pulling as well as postural limitations” - precluded use of the Guidelines.

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“When a claimant suffers from a nonexertional impairment on his ability to perform the full
range of work contemplated by the Guidelines, the ALJ must not rely on the Guidelines to
satisfy the Secretary’s burden of proof, but must instead produce vocational testimony.”
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995). “However, if the ALJ finds that the
claimant’s nonexertional impairment does not diminish or significantly limit the claimant’s
residual functional capacity to perform the full range of Guideline-listed activities, the ALJ
may apply the Guidelines in spite of a nonexertional impairment.” Id. As explained above,
the ALJ properly considered all of Kinzie’s limitations and concluded that she retained the
ability to perform a full range of light work. Accordingly, it was proper for the Appeals
Council to rely on the Guidelines.
C.

Kinzie’s Credibility

Finally, Kinzie argues that the ALJ erred in finding her statements about the severity
of her symptoms not credible. To assess a claimant’s credibility, the ALJ must consider all
of the evidence, including prior work records and observations by third parties and doctors
regarding daily activities, the duration, frequency, and intensity of pain, precipitating and
aggravating factors, the dosage, effectiveness, and side effects of medication, and functional
restrictions. Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). The ALJ may not discount
a claimant’s complaints solely because they are not fully supported by the objective medical
evidence, but the complaints may be discounted based on inconsistencies in the record as a
whole. Id. at 972. Where adequately explained and supported, credibility findings are for
the ALJ to make. Id. (citing Tang v. Apfel, 205 F.3d 1084, 1087 (8th Cir. 2000)). In
evaluating Kinzie’s credibility, the ALJ considered numerous factors, including Kinzie’s
medical records, her own testimony, and her work history. (Tr. 20-21.) Although the ALJ
did not explicitly discuss each of the so-called Polaski factors, such detail is not required.
See Samons v. Astrue, 497 F.3d 813, 820 (8th Cir. 2007) (“[W]e have not required the ALJ's
decision to include a discussion of how every Polaski ‘factor’ relates to the claimant's
credibility.”).

As a whole, the evidence provides substantial support to the ALJ’s

determination that Kinzie is not credible.
Kinzie’s own testimony and her medical records support the conclusion that her
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physical impairments are not as severe as she claims. First, Kinzie admits that she cleans her
house and runs errands, including cooking food and washing dishes. (Tr. 112.) Moreover,
as noted by the ALJ, despite Kinzie’s assertion of “chronic, debilitating pain, she has not
sought any medical treatment in many years.” (Tr. 20.) The Eighth Circuit Court of Appeals
has held that a claimant’s willingness to submit to treatment is a proper consideration in
evaluating the claimant’s credibility. See Gray v. Apfel, 192 F.3d 799, 804 (8th Cir. 1999).
According to Kinzie’s medical records, other than one visit to a chiropractor, she has not
obtained any treatment, surgery or physical therapy. (Tr. 20.) Further, as noted by the ALJ,
Kinzie failed to appear for an x-ray that Dr. Wang ordered during his examination. See
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“A failure to follow a
recommended course of treatment also weighs against a claimant’s credibility”).
In addition, Kinzie’s multiple work attempts since her alleged onset of disability, as
well as the fact that she did not stop working due to her alleged disability, support the ALJ’s
credibility determination. Kinzie worked full-time as a home attendant and housekeeper, and
part-time as a laundry worker, after her alleged onset of disability. (Tr. 19, 78, 283-84.)
Further, Kinzie did not indicate that she left any of these positions due to her alleged
disability. (Tr. 120-25.) Kinzie’s ability to work these jobs is inconsistent with her accounts
of suffering from debilitating pain.
The ALJ is responsible for deciding questions of fact, including the credibility of a
claimant’s subjective testimony about his or her limitations. See Gregg v. Barnhart, 354 F.3d
710, 713 (8th Cir. 2003). “If an ALJ explicitly discredits the claimant’s testimony and gives
good reason for doing so, we will normally defer to the ALJ’s credibility determination.” Id.
at 714. In this case, substantial evidence in the record supports the ALJ’s decision to
discount Kinzie’s testimony. As such, this court defers to the ALJ’s credibility finding.
CONCLUSION
For the reasons stated, and after careful consideration of each argument presented in
Kinzie’s brief, I find that the Commissioner’s decision is supported by substantial evidence
on the record as a whole and is not contrary to law.
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Accordingly,
IT IS ORDERED that judgment shall be entered by separate document providing that
the decision of the Commissioner is affirmed.
October 4, 2011.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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