Brown v. Astrue

Filing 21

MEMORANDUM AND ORDER - Commissioner of Social Security's decision is affirmed. Ordered by Senior Judge Warren K. Urbom. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAYLIN THOMAS BROWN,
Plaintiff,

4:13CV3042

vs.

MEMORANDUM AND ORDER
ON REVIEW OF THE FINAL
DECISIONO F THE
COMMISSIONER OF SOCIAL
SECURITY

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration;
Defendant.

Caylin Thomas Brown filed a complaint on February 28, 2013, against
Michael J. Astrue, who was then serving as Commissioner of the Social Security
Administration.1 (ECF No. 1.) Brown seeks a review of the Commissioner’s
decision to deny his application for disability insurance benefits under Title II of
the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq. The defendant has
responded to the plaintiff’s complaint by filing an answer and a transcript of the
administrative record. (See ECF Nos. 11, 12). In addition, pursuant to my order of
June 3, 2013, (ECF No. 14), each of the parties has submitted briefs in support of
his or her position. (See generally Pl.’s Br., ECF No. 15; Def.’s Br., ECF No. 20).
After carefully reviewing these materials, I find that the Commissioner’s decision
must be affirmed.

I.

BACKGROUND

Brown initially applied for disability benefits on September 29, 2010,
alleging an onset date of January 28, 2010. (See ECF No. 12, Transcript of Social
1

Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin was
substituted as a party on March 1, 2013, after she was appointed to serve as Acting
Commissioner of the Social Security Administration.
1

Security Proceedings (hereinafter "Tr.") at 157). After his application was denied
initially and on reconsideration, (id. at 58-61, 70-73) Brown requested a hearing
before an administrative law judge (hereinafter "ALJ"). (Id. at 7, 79-80). This
hearing was conducted on April 30, 2012. (Id. at 24-46.) In a decision dated May
3, 2012, the ALJ concluded that Brown was not entitled to disability insurance
benefits. (Id. at 8-23). The Appeals Council of the Social Security Administration
denied Brown’s request for review. (Id. at 1-6.) Thus, the ALJ’s decision stands as
the final decision of the Commissioner, and it is from this decision that Brown
seeks judicial review.
II.

SUMMARY OF THE RECORD

Brown, whose date of birth is January 15, 1988, testified that he injured his
back in January 2010 when he was lifting a headboard. (Id. at 29-30). He herniated
several discs in his back. (Id. at 30). About six months later, he had a lumbar
laminectomy. He had a second surgery in August 2010 after he fell and reherniated the discs. (Id. at 30-31). Brown had not been employed full-time since
the initial injury. (Id. at 30).
A. Medical Evidence
After Brown injured his back in January 2010, he began treatment for
recurrent back pain with David Lindley, M.D. (Id. at 275). On February 2, 2010,
Lindley noted that Brown showed tenderness in the paralumbar muscles on the left
side and reported pain shooting down his left leg. Lindley stated that Brown
“[a]lmost certainly” suffered from discogenic issues, but “[h]e really can’t afford
further investigation.” Lindley stated that he talked to Brown about weight loss
because he weighed 408 pounds at that time. (Id.).
Brown returned to Lindley on March 8, 2010, reporting “horrible right leg
2

pain again.” (Id.). Lindley reported that the pain was recurrent with markedly
reduced straight leg raising on the right side, pain shooting down the back of the
leg, and tenderness in the paralumbar muscle in the right side. Lindley noted that
prednisone had worked the previous time, but Brown was “[b]etween a rock and a
hard place without any insurance.” Lindley prescribed prednisone, Percocet,
ibuprofen, and Flexeril. Lindley asked Brown to consider having an MRI and again
addressed the need for Brown to lose weight. (Id.).
Brown continued to see Lindley for treatment. On April 4, 2010, Lindley
noted that Brown had markedly reduced straight leg raising and some tingling
down his leg. Lindley stated that Brown clearly had sciatica secondary to disc
entrapment. Lindley stated that Brown was struggling to take any action about his
weight, had not been able to go to work, and had not been out of the house for two
weeks. Lindley reported that he completed paperwork to obtain Medicaid since
Brown needed an MRI of his lumbar spine as he had failed to obtain relief with
anti-inflammatories and pain medications. Because prednisone had helped some,
Lindley refilled Brown’s prescriptions for it and Percocet. (Id. at 275-76).
Lindley saw Brown in April and May 2010 and continued to prescribe
Percocet. (Id. at 276). On May 18, 2010, Brown had an MRI. (Id. at 279, 356). The
report on the MRI indicated that Brown had large disc herniations at L3-L4 and
L4-L5 causing severe central stenosis impinging the intrathecal nerve roots, large
central L5-S1 disc herniation without anatomic impingement, and mild left
paracentral T12-L1 subligamentous disc herniation abutting the anterior conus. (Id.
at 279). He was diagnosed with L3-4 and L4-5 herniated disc, lumbar radiculitis,
lumbar spondylosis, and lumbar degenerative disc disease. (Id. at 282).
Omar Jimenez, M.D., performed a lumbar discectomy at L3-4 and L4-5 on
June 25, 2010. (Id. at 282). Brown reported that he did well initially after surgery,
3

but six days later, he fell and had worsening pain in his right lower extremity. (Id.
at 328). On July 6, 2010, Brown returned to Jimenez. Brown also reported that he
had spent five hours sitting at the races four days earlier and that his symptoms
progressed after that. He reported pain shooting down his right leg, but it was more
like a muscle ache than the intense pain he had before surgery. He did not have any
numbness. (Id.). Jimenez ordered a lumbar x-ray, which showed no fracture of the
spine. (Id. at 349). The notes indicate that the examination was limited due to
Brown’s “body habitus.” (Id.). An MRI (Id. at 280, 353) indicated postsurgical
changes at L3-L4, including persistent large disc extrusions, which caused
moderate canal stenosis at L3-L4 but had mass effect along nerve roots at that
level. There was severe canal stenosis at L4-L5 with complete obliteration of the
CSF space. (Id. at 280). There was subligamentous disc extrusion at T12-L1 which
deformed the anterior aspect of the conus. (Id. at 281, 354). After another MRI on
July 27, 2010, showed recurrent disc herniations at L3-4 and L4-5, Jimenez
recommended re-exploration and a discectomy at those levels. Jimenez told Brown
that the injury could recur, and if it did, he might need a fusion of the spine. (Id. at
327). The second discectomy of L3-4 and L4-5 was completed on July 28, 2010.
(Id. at 299-300, 309). After the second surgery, Brown continued to have leg pain
posterior to his ankles. A CT lumbar spine showed no abnormalities. (Id. at 300,
315). Before he left the hospital, he was being seen by physical therapy, but his
progress was slow. (Id. at 300).
By August 20, 2010, Lindley reported that Brown was doing very well and
that his back pain had improved significantly. (Id. at 326). Brown stated that he
had mild discomfort when he bent forward and slight pain in the right hip. He had
normal sensation to light touch in both legs. Lindley recommended Brown begin
physical therapy twice a week for four weeks and renewed the prescription for
4

Percocet. (Id.). By September 8, 2010, Brown reported some persistent back pain
but less pain in his legs. (Id. at 276). Lindley prescribed Norco in order to wean
Brown off of Percocet. (Id.).
Brown continued to see Lindley periodically, reporting continued back pain.
On April 18, 2011, Brown stated that he was having “horrible back pain” and that
his legs at times became numb and caused him to “drop to the floor.” (Id. at 386).
Lindley stated that he talked to Brown about weight loss. Lindley was not sure of
any other treatment for Brown, who did not have medical insurance, and Lindley
was reluctant to continue prescribing pain medications. Lindley referred Brown to
Jimenez. (Id.).
On June 7, 2011, Jimenez reported that Brown said he had never completely
been 100 percent better after surgery, but he had improved about 70 or 80 percent.
(Id. at 387). However, his back pain had returned. The new lumbar MRI showed
there was a slight recurrence of a herniated disc at L3-4, L4-5, but it was not as
large as it had been previously. Jimenez recommended physical therapy, but
Brown stated he did not have funds to pay for it. Jimenez also talked to Brown
about the possibility of injections, but again he was worried about having no
insurance. Brown had full strength in both lower extremities. Jimenez stated that if
Brown was not progressing by June 17, 2011, he would try to get Brown some
interventional treatments including injections. (Id.). The record does not show any
additional treatment by Jimenez.
Brown saw Lindley on July 22, 2011, (Id. at 386) and November 22, 2011,
for a recheck of his back pain. Brown reported that the pain was persistent and
constant. (Id. at 383). Pain medications were prescribed. (Id. at 385-86).
B. Medical Opinion Evidence
Jerry Reed, M.D., completed a physical residual functional capacity (RFC)
5

assessment of Brown on November 19, 2010. (Id. at 367-74). Reed determined that
Brown could occasionally lift or carry 20 pounds and frequently lift or carry 10
pounds. (Id. at 368). He could stand and/or walk and sit for about six hours in an
eight-hour workday. Brown was unlimited in his ability to push and/or pull. (Id. at
368). He could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Id. at
369). Reed noted that Brown reported mild discomfort when he bent forward, but
he had normal sensation to light touch in both legs and his reflexes were normal.
(Id.). Brown had no manipulative, visual, or communicative limitations. (Id. at
370-71). It was recommended that Brown avoid concentrated exposure to extreme
cold, vibrations, or hazards. (Id. at 371).
Reed noted that although physical therapy had been recommended, there
was no evidence that Brown had followed through with it. (Id. at 374). Brown
admitted to decreased pain and improved symptoms after surgery, but his report of
activities of daily living reflected a different story with quite exaggerated
symptoms compared to the most recent medical records. Reed stated that Brown
seemed to be quite active when visiting friends and family on a daily basis. He
reported using a motorized cart for shopping, but there was no mention of
decreased mobility and it was unclear if he used the cart for convenience. (Id.).
Reed reported that a third party indicated that Brown had no problem with
independence and was able to keep his house clean and to care for his pets. Reed
stated that Brown was considered to be partially credible due to inconsistencies in
his activities of daily living. Brown continued to seek pain medications, but the
medical records showed improvement in his symptoms following two surgeries. It
was likely that he would continue with pain medications while he fully healed from
the surgery. Overall evidence indicated that Brown was capable of working as
outlined in the RFC. (Id.).
6

Glen Knosp, M.D., affirmed Reed’s RFC. (Id. at 377). Knosp noted that
Brown’s statements to his medical providers contradicted his disability allegations.
He had reported he was doing well with significant improvement in his pain level,
to the point it was almost gone, and he had no discernable weakness. He had been
released from care, but had failed to start physical therapy as directed. (Id. at 378).
Brown’s morbid obesity was a chronic condition, but Brown was able to move
about independently and care for his own personal needs. (Id.).
C. Hearing Testimony
At a hearing on April 30, 2012, (Id. at 26) Brown testified that he did not
complete high school because he did not have enough credits by the time he was
21 years old, so he voluntarily withdrew and later obtained a GED. (Id. at 28-29).
From the time he was 15 until he was 19 he worked as a carpet installer. He had
also previously worked as a dishwasher, at a sandwich shop, and as a driver for the
railroad. (Id. at 29).
Brown testified that in January 2010 he herniated a few discs in his back
when he was lifting a headboard. (Id. at 29-30). He had not been employed fulltime since that date. (Id. at 30). After the first lumbar laminectomy, Brown said his
hips and back hurt all the time. In August 2010, he fell and re-herniated the discs
and had a second surgery. (Id. at 30-31). Since that time, Brown said he can sit or
stand for about 15 minutes because he has to change positions constantly. (Id. at
31). Brown said he was able to lay (sic) down for about five or six hours. (Id. at
32). After he lays (sic) down, Brown said he is stiff and has “pretty bad” pain. He
stands and walks around a little to stretch out, then lays (sic) back down for a little
bit before he can sit and stand for the rest of the day. He rated his pain as eight out
of ten for the first two hours of the day. After he takes medication, it drops to about
a five or six for the rest of the day. By the end of the day, the pain is back to an
7

eight. (Id.).
Brown said after his second surgery he tried to exercise by stretching and
walking longer distances for two or three months, but none of it helped and
actually made it worse. (Id. at 39-40). When he tried to walk around three blocks,
he had to stop because of the pain and called for a ride to pick him up. (Id. at 39).
Brown said he is 6’2” tall and weighs between 350 and 375. (Id. at 35). His father
provides his living quarters and pays Brown’s bills. (Id.). Brown said he has
problems dressing because he cannot bend over to pull up his pants and he has
difficulty tying his shoes. (Id. at 36). He goes grocery shopping about once each
month and is able to push the cart while leaning on it. (Id. at 37). Brown said each
day he drives to his father’s house, which is about eight blocks away. (Id. at 3637). He said that in the last year, he had driven 60 miles in the last year “to
Illinois.” (Id. at 37-38). He lives alone and does not cook much, but fixes
sandwiches. He showers because he cannot get out of the bathtub. His father,
brother, or a friend help in cleaning the house because he has difficulty bending
over. (Id. at 38). Brown said he washes the dishes and cleans the stovetop. His
father takes out the trash and mows the lawn. (Id. at 40). Brown spends his time
reading, drawing, and painting, and spends 45 minutes having lunch and dinner
with his grandmother at his father’s house. (Id. at 40-41). He takes his laundry to
his father’s house, where his father takes it out of the truck and completes it. (Id. at
38).
Brown said he goes to bed at about 11 p.m. and wakes up five times each
night, getting up to move around at least twice. (Id. at 33). Brown said he does not
take medication to sleep, but he takes hydrocodone every six hours and tramadol
every six hours, both for pain relief. (Id. at 33). Brown said his surgeon had talked
about fusing the discs in another surgery, but he cannot afford the surgery. (Id. at
8

34). Brown said the pain affects his concentration and he is easily distracted. (Id. at
34). Brown said he does not use a cane or walker and was not receiving any other
ongoing treatment for his back. (Id. at 39). Brown said he did not receive any
formal physical therapy because he could not afford it. (Id. at 40).
The ALJ asked Janice Hastert, a vocational expert (VE), (Id. at 41) if a
claimant of the same age, education, and work history background, and who is
limited to work at the light exertional level, who can occasionally climb, balance,
stoop, kneel, crouch and crawl, and who should avoid concentrated exposure to
extreme cold, vibrations, and hazardous conditions, could perform any of Brown’s
past work. (Id. at 42-43). The VE said the only past work Brown could do is
cashier. (Id. at 43). However, there is a wide variety of unskilled light occupations
that fall within the category of work Brown could perform. Examples were a bench
assembler, garment sorter, and inspector/hand packager, all of which had positions
in Nebraska and nationally. If the employee was limited to jobs in which he would
be able to alternate sitting and standing about every 30 minutes, the bench
assembler would remain on the list. (Id. at 43). Other jobs include
shipping/receiving weigher and office helper. (Id. at 43-44). If the person was
limited to jobs in which he alternated positions from sitting to standing about every
15 minutes, the VE said all gainful work activity would be precluded. (Id. at 44).
E. The ALJ's Decision
An ALJ is required to follow a five-step sequential analysis to determine
whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must
continue the analysis until the claimant is found to be “not disabled” at steps one,
two, four or five, or is found to be disabled at step three or step five. See id. In
this case, the ALJ found that Brown is not disabled. (See Tr. at 11-23).

9

Step one requires the ALJ to determine whether the claimant is currently
engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b). If
the claimant is engaged in substantial gainful activity, the ALJ will find that the
claimant is not disabled. See id. The ALJ found that Brown had not engaged in
substantial gainful activity from the application date of September 29, 2010. (Tr. at
13).
Step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. § 404.1520(c). A “severe impairment” is an impairment
or combination of impairments that significantly limits the claimant’s ability to do
“basic work activities” and satisfies the “duration requirement.” See 20 C.F.R. §
404.1520(a)(4)(ii), (c); id. § 404.1509 (“Unless your impairment is expected to
result in death, it must have lasted or must be expected to last for a continuous
period of at least 12 months.”). Basic work activities include “[p]hysical functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling”; “[c]apacities for seeing, hearing, and speaking”; “[u]nderstanding,
carrying out, and remembering simple instructions”; “[u]se of judgment”;
“[r]esponding appropriately to supervision, co-workers and usual work situations”;
and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 404.1521(b).
If the claimant cannot prove such an impairment, the ALJ will find that the
claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c). The ALJ found
that Brown had the following severe impairments: degenerative disc disease of the
lumbar spine, status post two surgical operations, and obesity, citing 20 C.F.R. §
416.920(c). The ALJ found no mental impairment. (Tr. at 13).
Step three requires the ALJ to compare the claimant’s impairment or
impairments to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see
also 20 C.F.R. Part 404, Subpart P, App’x 1. If the claimant has an impairment
10

“that meets or equals one of [the] listings,” the analysis ends and the claimant is
found to be disabled. See 20 C.F.R. § 404.1520(a)(4)(iii), (d). If a claimant does
not suffer from a listed impairment or its equivalent, then the analysis proceeds to
steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found that Brown did
not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (Tr. at 13).
Step four requires the ALJ to consider the claimant’s RFC to determine
whether the impairment or impairments prevent the claimant from engaging in
“past relevant work.” See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the claimant
is able to perform any past relevant work, the ALJ will find that the claimant is not
disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). In this case, the ALJ wrote:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 C.F.R. §
416.967(b) in that he is able to lift and carry twenty pounds
occasionally and ten pounds frequently. The claimant can walk
or stand for six hours in an eight-hour day and sit for six hours
in an eight-hour day. However, the claimant must be able to
change positions between sitting and standing every thirty
minutes. The claimant can occasionally climb, balance, stoop,
kneel, crouch, and crawl. Furthermore, the claimant should
avoid concentrated exposure to cold temperature extremes. The
claimant must also avoid concentrated exposure to vibrations
and hazardous conditions.
(Tr. at 14).
11

The ALJ found that Brown had no past relevant work, had at least a high
school education, and was able to communicate in English. The ALJ considered
Brown’s age, education, work experience, and RFC, and determined that there are
jobs that exist in significant numbers in the national economy that Brown can
perform. (Id. at 17). He was found to be not disabled. (Id. at 18).

III. STANDARD OF REVIEW

I must review the Commissioner’s decision to determine “whether there is
substantial evidence based on the entire record to support the ALJ’s factual
findings.” Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997) (quoting Clark v.
Chater, 75 F.3d 414, 416 (8th Cir. 1996)). See also Collins v. Astrue, 648 F.3d
869, 871 (8th Cir. 2011). “Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept as adequate to support the
conclusion.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013) (internal
citations omitted).

A decision supported by substantial evidence may not be

reversed, “even if inconsistent conclusions may be drawn from the evidence, and
even if [the court] may have reached a different outcome.” McNamara v. Astrue,
590 F.3d 607, 610 (8th Cir. 2010). Nevertheless, the court’s review “is more than
a search of the record for evidence supporting the Commissioner’s findings, and
requires a scrutinizing analysis, not merely a ‘rubber stamp’ of the Commissioner’s
action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (citations,
brackets, and internal quotation marks omitted). See also Moore v. Astrue, 623
F.3d 599, 602 (8th Cir. 2010) (“Our review extends beyond examining the record
to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.”).
I must also determine whether the Commissioner’s decision “is based on
12

legal error.” Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (quoting Lowe v.
Apfel, 226 F.3d 969, 971 (8th Cir. 2000)). “Legal error may be an error of
procedure, the use of erroneous legal standards, or an incorrect application of the
law.” Id. (citations omitted). No deference is owed to the Commissioner’s legal
conclusions. See Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003).
See also Collins, 648 F.3d at 871 (indicating that the question of whether the ALJ’s
decision is based on legal error is reviewed de novo).

IV.

ANALYSIS

Brown asserts generally that the Secretary’s final decision is not consistent
with the law and that the findings of fact are not supported by substantial evidence
on the record as a whole. (Pl.’s Brf at 3). I will address his specific arguments
below.
Number of Jobs
Brown takes issue with the ALJ’s decision related to the number of jobs
available for him. The ALJ stated that Brown’s ability to perform all or
substantially all of the requirements of the level of light work had been impeded by
additional limitations. The ALJ asked the VE s hypothetical question as to whether
jobs exist in the national economy for an individual with Brown’s age, education,
work experience, and RFC. The VE testified that given all of these factors, the
individual would be able to perform the requirements of representative occupations
such as: bench assembler, a light, unskilled occupation with 500 jobs in Nebraska
and 100,000 jobs in the national economy; shipping/receiving weigher, a light,
unskilled occupation with 150 jobs in the State of Nebraska and 31,500 jobs in the
national economy; and office helper, a light, unskilled occupation with 200 jobs in
Nebraska and 41,000 jobs in the national economy. (Id. at 18).
13

In his brief, Brown argues that the number of jobs identified by the ALJ is
not a reasonable number of jobs in a state with a civilian labor force of 1,005,455
and employment of 960,830. Pursuant to 42 U.S.C. § 423(d)(2)(A), an
individual shall be determined to be under a disability only if
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be
hired if he applied for work.
The statute further defines “work which exists in the national economy” as “work
which exists in significant numbers either in the region where such individual lives
or in several regions of the country.” Id. The Commissioner may satisfy the burden
to show that sufficient employment is available by using the services of a
vocational expert. 20 C.F.R. § 416.966(e).
“The ALJ's hypothetical question to the vocational expert needs to include
only those impairments that the ALJ finds are substantially supported by the record
as a whole.” Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012), quoting
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). A vocational expert's
testimony concerning the availability of suitable work may constitute substantial
evidence where the testimony is elicited in response to a hypothetical question that
accurately sets forth the plaintiff's physical and mental impairments. Smith v.
Halter, 307 F .3d 377 (6th Cir. 2001).

14

The United States Court of Appeals for the Eighth Circuit has stated that
“[t]o decide whether jobs exist in significant numbers, we consider, inter alia, the
reliability of the claimant's and the vocational expert's testimony. Ultimately,
however, we leave this determination to the trial judge's common sense in
weighing the statutory language” (id. at 188) and applying it to the facts of a
particular claimant. Long v. Chater, 108 F.3d 185 (8th Cir. 1997). The ALJ should
also consider the level of the claimant’s disability and the types and availability of
work that the claimant could perform. Hall v. Chater, 109 F.3d 1255 (8th Cir.
1997). In Long, supra, the appellate court agreed with the ALJ’s finding that 650
jobs in the state and 30,000 jobs nationwide was a significant number. In Jenkins v.
Bowen, 861 F.2d 1083 (8th Cir. 1988), the court found that 500 jobs was a
significant number of available jobs, taking into consideration the claimant’s work
experience and the vocational expert’s opinion. In Hall, supra, the appellate court
found that as few as 340 jobs constituted a significant number available to the
claimant.
In the present case, the VE identified a total of 850 jobs that would be
available in Nebraska for Brown. The ALJ determined that the testimony of the VE
supported a conclusion that Brown was capable of making a successful adjustment
to other work that exists in significant numbers in the national economy. (18).
Brown admits that “[w]hat constitutes a significant number of jobs is not a mere
mathematical computation.” (Pl.’s Brf at 6). I find no error in the ALJ’s
determination that there are a significant number of jobs available to Brown.
Daily Activities
Brown next argues that the ALJ erred in equating his daily activities with the
ability to work. The ALJ determined that Brown’s activities were inconsistent with
his allegations of disabling pain. (Id. at 16).
15

On a daily activities and symptoms report completed on October 7, 2010,
which was about two months after his second surgery, Brown stated that he fixes
microwave meals and can sit in a chair by the stove to cook quick meals. He sits
down to load the dishwasher, but he cannot bend over to pick up items, so his
father helps with other chores and laundry. He can drive for 10 or 15 miles before
he needs to get out and stretch. (Id. at 213). Brown indicated that he draws about
four hours per week and reads for three or four hours per day. He lies on his bed
because he has extreme pain when he looks down while sitting or standing. (Id. at
214). He said he goes grocery shopping once every two or three weeks. He uses an
electric scooter to get around the store and needs help loading and unloading
groceries. He said he watches television for one or two hours at a time. Brown
stated that he visits friends and family about one or two hours per day or as long as
he can handle the pain from sitting. He said he sleeps six or seven hours per night,
but tosses and turns every 30 minutes to one hour. Brown said he can walk about
one block in 10 minutes but his right leg drags and he has pain down his back, in
his hip and down his legs. He also said he has weakness in his legs and feet. Brown
said he cannot go up stairs without a handrail and can only go up four to five steps
with a handrail due to the weakness in his legs and hips. He claims he can sit for 15
or 20 minutes and then his back starts to hurt. (Id. at 214).
Brown described his symptoms as a constantly stiff back with a sharp pain
across his right hip and down his legs, as well as numbness and weakness in his
legs and feet. (Id. at 215). He said changing positions helped for about three to five
minutes, but his pain was worse when bending, lifting, sitting, standing, walking,
or looking down. Brown said he had two or three good days per week. (Id. at 215).
At the time, Brown was taking Vicodin, which he said dulls the symptoms after 30
16

minutes and lasts for about 2½ hours, but it caused memory problems, difficulty
concentrating, and drowsiness. (Id. at 216).
Paul Brown, Brown’s father, completed a supplemental form in which he
stated that Brown prepared most of his own meals and that he interacted four to
five times per week with friends or relatives. (Id. at 219). Paul stated that Brown
did his own shopping and that he read news and worked on his computer. (Id.).
Paul said Brown did well with employers and listened to criticism and responded
well. (Id. at 220). He accepted change and adjusted to what needs to be done and
was able to concentrate and maintain attention. (Id. at 220-21). Paul said Brown
kept his house clean, fed his dog, and had no problems with independence. (Id. at
221).
In interrogatories completed on April 3, 2012, Brown stated that he tries to
walk about 20 minutes five or six days per week. (Id. at 261). He said he can
perform personal hygiene, including showering, brushing his teeth, shaving, and
combing his hair. Brown also stated that he does most of his own cooking. (Id. at
261). In a typical day, Brown wakes up and takes his medication, reads the news
while the medications begin to work, takes a shower, gets dressed, walks the dog
for about 15 minutes, and then goes to his grandmother’s house for lunch. After
about 45 minutes to an hour, Brown returns home and lies down to take his
medication, reads or watches television for one hour, goes to his father’s house and
talks for 90 minutes, drives back home and walks his dog for about 10 minutes,
and lies down for a while. He goes to his grandmother’s home and cooks dinner for
her and his father. When he returns home, he reads or draws until he goes to sleep.
(Id. at 261). Brown said he reads about six hours per day, for an hour or two at a
time. (Id. at 262).

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The ALJ noted that Brown’s activities of daily living had progressed since
his surgery, based on his responses on the function report. (Id. at 16). And the ALJ
noted that at the hearing, Brown testified to even greater healing and increased
functioning. Paul Brown’s function report included a comment that Brown had “no
problem with independence.” Thus, the ALJ found inconsistency between Brown’s
activities and his pain allegations. (Id. at 16).
In arguing that the ALJ erred in equating Brown’s daily activities with the
ability to work, he cites Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013), in which
the United States Court of Appeals for the Seventh Circuit found that substantial
evidence did not support the ALJ’s decision to deny social security disability
benefits. One of the issues in that case was the ALJ’s determination that the
claimant was not disabled because she was able to do laundry, take public
transportation, and shop for groceries. The court noted that a person has more
flexibility in scheduling activities of daily living than he would in a full-time job,
can get help from other persons with daily activities, and in daily activities, is not
held to a minimum standard of performance, as would be the case with an
employer. “’The failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in social security
disability cases.’” Hughes, supra, 705 F.3d at 278, quoting Bjornson v. Astrue, 671
F.3d 640, 647 (7th Cir. 2012). However, the issue of daily living activities was not
the only reason the appellate court in Hughes found error in the ALJ’s decision.
The ALJ had also found that the claimant stopped medical treatment for four years,
disregarded a report from a medical expert appointed by the court, and dismissed
the claimant’s respiratory problems with the fact that she was a smoker. Id.
The ALJ is to consider all evidence, including that related to subjective
complaints; the claimant's prior work record; observations by third parties and
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treating and examining physicians relating to the claimant's daily activities; the
duration, frequency and intensity of the pain; precipitating and aggravating factors;
dosage, effectiveness and side effects of medication; and functional restrictions.
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Acts which are inconsistent
with a claimant's assertion of disability reflect negatively upon that claimant's
credibility. Johnson v. Apfel, 240 F.3d 1145 (8th Cir. 2001). The court found that
the fact that the claimant was able to carry on a normal life contributed to the
finding that his impediments were not disabling. Id.
The denial of disability benefits was affirmed by the Eighth Circuit in a case
in which the ALJ discounted the claimant’s assertion of disabling pain. McDade v.
Astrue, 720 F.3d 994 (8th Cir. 2013). The court found that the ALJ provided good
reasons supported by substantial evidence. The ALJ had noted that the claimant
was not unduly restricted in his daily activities. He had the ability to perform some
cooking, took care of his dogs, used a computer, drove wearing a neck brace, and
shopped for groceries with the use of an electric cart. The ALJ had also noted that
the claimant did not take any long-term narcotic medication for pain relief, despite
his allegations of chronic disabling pain. Id.
The Eighth Circuit has stated, “Our cases admittedly send mixed signals
about the significance of a claimant's daily activities in evaluating claims of
disabling pain.” Clevenger v. Social Security Administration, 567 F.3d 971 (8th
Cir. 2009). However, the claimant in that case had reported that she engaged in an
array of such activities—including doing laundry, washing dishes, changing sheets,
ironing, preparing meals, driving, attending church, and visiting friends and
relatives. Id. The court stated that it was not unreasonable for the ALJ to rely on
that evidence to infer that the claimant’s assertion of disabling pain was not

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entirely credible. Id. The appellate court concluded that the ALJ's decision was
supported by substantial evidence on the record as a whole. Id.
In this case, the ALJ found that Brown’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms;
however, Brown’s statements concerning the intensity, persistence and limiting
effects of these symptoms were not credible to the extent they were inconsistent
with the RFC assessment. (Tr. at 14). The ALJ explained his reasons for finding
that Brown’s allegations of pain were not fully credible. Brown asserted that his
pain was so severe that it required him to change positions every 15 minutes and to
lie down five to six hours a day. (Id. at 15). First, the ALJ noted that the clinical
signs and findings on examination after the second surgery had been essentially
benign. Second, the ALJ noted that the medical records did not support Brown’s
testimony that he needed another surgery, but he cannot afford it. During two
postoperative visits, Jimenez had not opined that Brown needed further surgery.
Instead, Jimenez recommended physical therapy on both occasions, but Brown had
not undergone any physical therapy. He continued to take pain medication, which
he said reduced his pain. And Brown did not testify to any adverse side effects
from medications and the medical records did not contain any reports or
complaints of side effects. (Id. at 15-16). The ALJ found that Brown’s treatment
and efforts to relieve his pain since his surgery were inconsistent with his
subjective allegations. (Id. at 16). In addition, there was no evidence to support
Brown’s allegations of distractibility or difficulty concentrating due to his pain. He
had not reported that symptom to any of his physicians and neither doctor noted
this symptom in their medical records. The ALJ found no medical support for the
alleged disabling pain. (Id.).

20

The ALJ also found that Brown’s activities of daily living had progressed
since his surgery. Two months after his second surgery, Brown reported that he
was able to prepare his own meals and load the dishwasher. He was able to drive
short distances, and he shopped for groceries every two to three weeks. Brown
reported that he visited friends and family and he engaged in various hobbies such
as drawing and reading. (Id.). Brown’s testimony at the hearing reflected even
greater healing with increased functioning. Paul Brown, Brown’s father, reported
that Brown took care of his pets, had no problems grooming, and was able to keep
his house clean, and that Brown had no problem with independence. The ALJ
stated, “Overall, the claimant’s activities are inconsistent with his allegations of
disabling pain.” (Id.).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff's complaints.
Eichelberger v. Barnhart, 390 F.3d 584 (8th Cir. 2004). The ALJ properly made the
determination that Brown was only partially credible due to the inconsistencies
mentioned above.
The ALJ also noted that Brown had a poor work history, even prior to his
injury in January 2010. (Tr. at 16). He had been eligible to work since
approximately 2004, but between 2004 and January 2010, Brown had earned a
total of $3,087.99. In fact, in the two years prior to his injury, Brown earned a total
of $253.75. “The claimant’s work history prior to his alleged onset date shows that
he may not be highly motivated to work.” (Id.). It was reasonable for the ALJ to
consider that the poor work history undermined Brown’s credibility because “[a]
lack of work history may indicate a lack of motivation to work rather than a lack of
ability.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).

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As the ALJ noted, the inability to work without some pain or discomfort is
not necessarily disabling under the Social Security Act. Rather, the issue is
“whether the pain is [of] such debilitat[ing] and intractable nature as to preclude all
substantial gainful activity.” (Tr. at 16). The ALJ found that Brown’s pain would
not preclude all work activity. (Id.).
The ALJ found that Brown’s impairments required a reduction of the RFC.
(Id.). Based on the totality of evidence, the ALJ found that Brown would be
capable of performing less than the full range of light work. The ALJ gave
significant weight to the opinions of the state agency physicians, who have expert
training in the rules and regulations pertaining to disability claims, and their
opinions were consistent with the examination findings from Lindley and Jimenez.
The ALJ noted that there were no contrary opinions from any treating, examining,
or reviewing physician that Brown would be more limited than found by the ALJ.
(Id. at 17). Based on the substantial weight of the objective evidence, Browns’
course of treatment, his level of daily activity and his work history, the ALJ found
that Brown retained the RFC for the range of light work. The RFC was adjusted to
give Brown the benefit of the doubt with regard to his allegations of disability.
(Id.).
I do not find that the ALJ equated Brown’s ability to perform some light
household chores with the ability to work full-time. The ALJ considered Brown’s
daily activities, along with the medical evidence and Brown’s testimony. The ALJ
found Brown to be partially credible and provided sufficient reasons for his
determination.

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Consideration of Obesity
Finally, Brown asserts that the ALJ did not discuss the “normal limitations
concomitant with excess weight” and that the medical consultant did not discuss
the impact of obesity on Brown’s ability to work. (Pl.’s Brf at 9).
The record shows that obesity was addressed. The ALJ identified obesity as
one of Brown’s severe impairments. (Tr. at 13). Brown reported his weight as 390
pounds and his height as 6’2” tall. The ALJ stated that this would give Brown a
body mass index of approximately 51.4, which is considered in the obese range.
The ALJ stated that obesity may result in an individual having limitations in
exertional functions, postural functions, the ability to manipulate objects, or to
tolerate extreme heat, humidity, or hazards. (Id.). “[T]he combined effects of
obesity with other impairments can be greater than the effects of each of the
impairments considered separately.” (Id. at 13, citing SSR 02-01p). The ALJ stated
that the effects of Brown’s obesity had been considered in determining his RFC.
(Id. at 13). Thus, the record shows that the ALJ took Brown’s obesity into
consideration, even though Brown did not contend in his disability application or at
his administrative hearing that his obesity prevented him from working. (Id. at 201,
26-41).
A finding of obesity does not equate with a finding of disability. Forte v.
Barnhart, 377 F.3d 892 (8th Cir. 2004). In that case, the appellate court rejected the
claimant’s argument that the ALJ erred in failing to consider his obesity in
assessing his RFC. “Although his treating doctors noted that [the claimant] was
obese and should lose weight, none of them suggested his obesity imposed any
additional work-related limitations, and he did not testify that his obesity imposed
additional restrictions.” Id., 377 F.3d at 896. In Box v. Shalala, 52 F.3d 168 (8th

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Cir. 1995), the appellate court determined that the failure of the Secretary’s
decision to discuss obesity as an impairment was not fatal.
I find that the ALJ appropriately took into consideration the evidence related
to Brown’s obesity in adjusting the RFC. This alleged error has no merit.

V.

CONCLUSION

The ALJ determined that Brown was capable of performing light work. The
ALJ based his decision on the entire medical record and adjusted it to give Brown
the benefit of the doubt as to his allegations of disability. (Tr. at 17). Therefore, the
ALJ found that Brown was not under a disability at any time from September 29,
2010, the date he filed the application for disability. (Id. at 18).
I find that there is substantial evidence based on the entire record to support
the ALJ’s factual findings. Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997). I
find that the decision must be affirmed.
IT IS ORDERED that the Commissioner of Social Security’s decision is
affirmed.
DATED March 24, 2014.
BY THE COURT:

Warren K. Urbom
United States Senior District Judge

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