Beckett v. Colvin
MEMORANDUM AND ORDER - The 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
BARBARA KAY BECKETT, )
CAROLYN W. COLVIN,
Acting Commissioner of
CASE NO. 4:13cv3057
MEMORANDUM AND ORDER ON
REVIEW OF THE FINAL DECISION
OF THE COMMISSIONER OF
Barbara Kay Beckett filed a complaint on March 12, 2013, against Carolyn
W. Colvin, Acting Commissioner of the Social Security Administration. (ECF No.
1.) Beckett seeks a review of the Commissioner’s decision to deny her application
for disability insurance benefits and supplemental security income benefits under
Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401 et
seq., 1381 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. 10,
11). In addition, pursuant to the order of Judge Joseph F. Bataillon, dated June 19,
2013, (ECF No. 15), each of the parties has submitted briefs in support of her
position. (See generally Pl.’s Br., ECF No. 16; Def.’s Br., ECF No. 26). After
carefully reviewing these materials, I find that the Commissioner’s decision must
Beckett initially applied for disability benefits on July 1, 2010, alleging an
onset date of January 1, 2007. (See ECF No. 11, Transcript of Social Security
Proceedings (hereinafter "Tr.") at 134). She later amended the onset date to July 1,
2010, because she lacked insured status for Title II and the only claim to be
adjudicated was the Title XVI claim. (Id. at 144, 257). After her application was
denied initially and on reconsideration, (id. at 66-69, 70-73) Beckett requested a
hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 83-86).
This hearing was conducted on October 20, 2011. (Id. at 36-58.) In a decision
dated December 22, 2011, the ALJ concluded that Beckett was not entitled to
disability insurance benefits. (Id. at 12-33). The Appeals Council of the Social
Security Administration denied Beckett’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 Beckett seeks judicial review.
SUMMARY OF THE RECORD
Beckett, whose date of birth is June 17, 1968, (Id. at 134) alleged that she
stopped working on May 1, 2007, because of her conditions. (Id. at 182). Beckett
completed two years of college and had certifications in home health care, peer
educator, and CNA. (Id. at 183). She had past work experience as a grill cook,
home health care assistant, motel housekeeper, respite caregiver, and vocational
workshop supervisor. (Id. at 184).
A. Medical Evidence
Beckett alleged that her disability arose from chronic conditions, including
Type 1 diabetes, low blood pressure, neuropathy, gastrointestinal issues,
rheumatoid arthritis, and chronic obstructive pulmonary disease (COPD). (Id. at
182). The medical evidence supports some of these issues.
Beckett’s primary care physician was Douglas J. States, M.D. She received
medical care from him, physician assistants, and nurse practitioners between 2009
and 2011. (Id. at 284-317, 440, 443-45, 741-95). During that time, Beckett was
treated for and prescribed medications for diabetes, anxiety, allergies, hypotension,
gastroparesis, headaches, hypothyroidism, and renal insufficiency. (Id. at 284-317,
Beckett’s hemoglobin was regularly tested to evaluate her diabetes. (Id. at
279). The target for the A1C test was 6.5. (Id. at 279). On May 5, 2009, Beckett’s
result was 6.3, which fell in the excellent diabetic control range. (Id. at 324). On
August 10, 2009, the hemoglobin was 7.5, which fell in the good diabetic control
range. (Id. at 328). On February 3, 2010, the hemoglobin was 8.6, which was in the
fair diabetic control range. (Id. at 332). On March 29, 2010, her hemoglobin was
7.9, which was in the good diabetic control category. (Id. at 279). By June 2010,
the A1C result was 6.2, which again fell in the excellent control range. (Id. at 353).
Beckett also received medical treatment at a hospital emergency room on a
number of occasions. On January 26, 2009, it was determined that she had diffuse
gastritis and a small duodenal ulceration, status post upper GI bleeding. (Id. at
416). She spent two days in the hospital. (Id.). She returned to the emergency room
on July 25, 2009, complaining of abdominal pain, nausea, loss of appetite,
vomiting, and diarrhea. (Id. at 392). She was discharged in improved condition
with a clinical impression of gastroesophageal reflux disease. (Id. at 397-98).
On January 7, 2010, Beckett went to the emergency room complaining of a
cough, sore throat, and difficulty breathing. (Id. at 388). She was diagnosed with
bronchitis. (Id. at 389). She returned on January 26, 2010, complaining that she
had been suffering from dyspnea for three weeks. (Id. at 380). The clinical
impression was acute bronchitis, anxiety reaction with hyperventilation, and
psychogenic hyperventilation syndrome. (Id. at 382). She returned again on
February 11, 2010, complaining of palpitations, dyspnea, cough, nausea, and
weakness. (Id. at 366). She was discharged in good condition. (Id. at 372).
Beckett went back to the emergency room on February 15, 2010, again
complaining of dyspnea, along with chest tightness, wheezing, palpitations, and
severe anxiety. (Id. at 354). She was diagnosed as having hyperventilation
syndrome and hypertension and was discharged in improved condition. (Id. at
On September 24, 2010, Beckett went to the emergency room complaining
of a headache and abdominal pain. (Id. at 450, 455). She refused to submit to a CT
scan or a GI cocktail (Id. at 455). She was admitted for acute renal failure, but it
was resolved by the time she was discharged on September 27, 2010. (Id. at 456457). At that time, her blood pressure and blood sugars were well-controlled. (Id.
at 457). She returned to the emergency room on October 20, 2010, complaining of
abdominal pain. (Id. at 498). Beckett went back to the emergency room on January
22, 2011, again complaining of dyspnea. (Id. at 756). She was discharged in good
condition after being treated with Ativan. The clinical impression was acute
exacerbation of COPD and anxiety reaction. (Id.). On July 19, 2011, Beckett went
to the emergency room with a cough, sinus pain, fever, chills, and muscle aches.
(Id. at 752). It was determined that she had acute bronchitis. She was discharged in
improved condition. (Id. at 753).
The medical evidence also shows that Beckett had cataract surgery on both
eyes in December 2008. (Id. at 268, 573, 585-86, 597, 610-11). On June 4, 2010,
Beckett had a colonoscopy, which indicated two probable polyps. (Id. at 351). She
sought treatment for migraines from September 24, 2010, to August 17, 2011. (Id.
In January 2009, Beckett was placed in a boot after it was determined that
she had a fracture in her foot. (Id. at 277). She continued to complain of pain in
January 2010. (Id. at 276). The boot was discontinued in March 2010 because she
was not healing well and she had a foot ulcer. The physician discussed with her the
relationship between elevated blood sugar readings and healing. (Id.). On January
13, 2011, Richard Raska, D.P.M., noted that Beckett had an ulcer on her foot
which had not responded to conservative care for the previous six months. (Id. at
526, 539). He operated on it on January 13, 2011. (Id. at 527-28, 546-47). On
February 3, 2011, Beckett reported she had been walking excessively on the foot,
and Raska noted that patient noncompliance was a factor in the treatment. (Id. at
In addition, Beckett reported that she was diagnosed with juvenile
rheumatoid arthritis, but blood tests showed a normal rheumatoid factor of 6.3. (Id.
The record includes a physical residual functioning capacity (RFC)
questionnaire which apparently was completed by States.1 (Id. at 338-344). It
indicated that Beckett began treatment in January 2009 and had last been seen on
May 5, 2010. (Id. at 339). Her diagnoses included diabetes, gastroparesis, high
blood pressure with orthostatic hypotension, neuropathy, COPD, and rheumatoid
arthritis. The prognosis was chronic illness with medical management. The form
indicates that Beckett’s impairments were seldom severe enough to interfere with
her attention and concentration. (Id. at 340). Beckett had the ability to ambulate
effectively unassisted by a cane or other assistive device to perform daily activities
such as traveling to and from a workplace, using standard public transportation,
shopping, banking, and climbing several steps at a reasonable pace with the use of
The form does not list a doctor in the blank space provided for it. It is
signed, but the signature is not legible. Beckett does not refer to this assessment,
and the Commissioner states in her brief that this form was completed by States.
a single hand rail. (Id.).
The form stated that Beckett’s symptoms would interfere to the extent that
Beckett was unable to maintain persistence and pace to engage in competitive
employment. (Id. at 340). However, it stated that Beckett could work two to four
hours per day and work four to six days per week. (Id. at 341). Her symptoms
slightly impaired her ability to perform activities of daily living. States noted that
Beckett’s symptoms could be exacerbated by physical activity, movement or
overuse, temperature extremes, work stress, and static positioning. It was
medically reasonable to expect that she may need to lie down or recline
periodically throughout the day to relieve or reduce her symptoms. She would be
likely to miss work four or more times per month. (Id.). Beckett was likely to
experience fatigue which would moderately impair her ability to work and would
need four breaks in an eight-hour work day in addition to two standard breaks and
a lunch break. (Id. at 342). Beckett could occasionally lift up to 20 pounds, sit for
60 minutes, and stand for 30 minutes. She had good use of both hands and fingers
for bilateral manual dexterity. (Id. at 343). According to States, Beckett could sit
for about six hours in an eight-hour day and stand or walk for about two hours.
B. Medical Opinion Evidence
Jerry Reed, M.D., completed a physical RFC assessment on September 9,
2010. (Id. at 429-436). He determined that Beckett could occasionally lift and/or
carry 20 pounds and frequently lift and/or carry 10 pounds. (Id. at 430). Reed
stated that she could stand and/or walk at least two hours in an eight-hour workday
and sit about six hours in an eight-hour workday, with periodic sitting and standing
to relieve pain. She was unlimited in pushing and pulling. Reed noted that Beckett
had chronic conditions including insulin-dependent diabetes mellitus and
hypertension. The notes indicated a history of juvenile rheumatoid arthritis, but she
was not under the care of a rheumatologist. Reed stated that Beckett had a
medically determinable impairment that imposed periodic flares of symptoms,
including neuropathy in the feet, a history of degenerative knees, and a history of
asthma that would pose environmental limitations. Beckett would be precluded
from heavier exertion related to low energy. (Id. at 431).
Reed stated that Beckett could occasionally climb, balance, stoop, kneel,
crouch, and crawl. The limitations were based on Beckett’s low energy and
abdominal discomfort. (Id. at 431). She had no manipulative limitations, could
write legibly on forms, and had no dexterity deficits despite the history of
rheumatoid arthritis. (Id. at 432). She had previously had cataract surgery, and she
had no visual limitations and was able to watch television and read the Bible. (Id.).
She had no communicative limitations. (Id. at 433). Reed recommended that
Beckett avoid concentrated exposure to extreme heat and cold, wetness, vibration,
and fumes and odors. Her abdominal pain and elevated blood sugar levels limited
her activities to an occasional basis. (Id.).
Reed noted that Beckett reported persistent pain, swollen feet, and stomach
problems. Her blood sugar levels were poorly controlled. She was not seeking
treatment for arthritic complaints. She also had a history of anemia, gastroparesis,
and neuropathy, which imposed limitations that might reasonably wax and wane
with symptom management. Reed found that Beckett’s allegations as to the
severity, intensity, and frequency of symptoms were partially credible because they
were not fully supported by the objective findings. Beckett noted that stress
exacerbated her GI symptoms and that she was on antianxiety medication, but she
was not involved with mental health services and did not allege any mental
restrictions. (Id. at 434).
Reed noted that the statement from the treating physician (States) was not
given controlling weight due to inconsistencies within the report. (Id. at 435). The
statement indicated that Beckett was able to stand and walk two hours per day and
sit up to six hours in an eight-hour day, but it later noted that she could only work
two to four hours per day for four to six days per week. The statement indicated
that Beckett’s impairments would interfere with competitive employment because
she was unable to maintain pace and persistence. But that was contrary to the
capabilities outlined in the statement, as well as the indication that Beckett’s pain,
symptoms, and medications would seldom interfere with attention and
concentration. Reed said the totality of Beckett’s work restrictions were considered
in combination with the objective findings. (Id. at 435).
Beckett underwent a psychological evaluation on February 15, 2011, with
Rebecca Schroeder, Ph.D. (Id. at 623). Beckett reported that she had last worked in
2007 in the housekeeping department at Ramada Inn, but she left that job due to
medical issues including low blood pressure. (Id. at 624). Beckett stated that she
had not worked regularly for more than three years because of her medical issues,
including weakness, dizziness, and gastroparesis. She worked about two hours
each week helping an elderly woman with her housework. (Id.).
Beckett reported that she was diagnosed with rheumatoid arthritis when she
was 12, and the symptoms were once again causing her pain. (Id. at 625). Beckett
stated that she has had depression and anxiety over the years and had taken
antianxiety and antidepressant medications for the past 10 or 15 years, but she had
never been involved in outpatient therapy. (Id.). She described herself as being
tense and nervous most of the time, has a tendency to worry, and feels tearful. She
said she has low energy and feels mentally tired all day. (Id. at 626). Beckett
reported that she has had panic attacks for the past year when she becomes “dizzy,
tingly, and short of breath.” (Id. at 627). To calm herself, Beckett said she uses an
inhaler, Ativan, or marijuana. When she smokes marijuana, her appetite is
improved and she feels better about herself. (Id.).
Schroeder reported that Beckett seemed to have average to above average
intellectual functioning, exhibited a pleasant, cooperative attitude, exhibited good
social and communication skills, was able to maintain a conversation, and
appeared to be able to make good decisions for herself. (Id. at 628-29). Her mood
seemed somewhat dysphoric, and her affect was somewhat restricted. She did not
display a wide range of emotions. (Id. at 628).
Schroeder stated that Beckett might have some restrictions in her activities
of daily living related to her mental health functioning because she might have a
low energy level and chronic feelings of fatigue from depression. Beckett’s anxiety
might be exacerbated by isolation. But Beckett appeared capable of maintaining
social functioning most of the time. She seemed to notice increases in her physical
issues and in her symptoms of depression when she was under stress. She seemed
able to sustain concentration and attention for at least a short task completion, was
capable of understanding and remembering short and simple instructions, and was
able to carry out instructions under ordinary supervision. She also seemed able to
relate appropriately to coworkers and supervisors and to adapt to changes within
her environment. (Id. at 629).
Schroeder diagnosed Beckett as having major depressive disorder, recurrent,
mild to moderate; generalized anxiety disorder, with panic attacks; and cannabis
abuse. (Id. at 630). She had moderate stressors including financial and
occupational functioning. Her current GAF was 62.2 Schroeder stated that
“The GAF is a numeric scale ranging from zero to one hundred used to
Beckett’s prognosis for depression and anxiety was only fair.
Christopher Milne, Ph.D., completed a mental RFC assessment of Beckett
on February 24, 2011. (Id. at 635-637). He stated that Beckett had moderate
limitations in the ability to perform activities within a schedule, to maintain regular
attendance, and to be punctual within customary tolerances. (Id. at 635). Milne
stated that Beckett was capable of understanding, remembering, and carrying out
short and simple instructions, showed adequate attention and concentration, was
capable of maintaining socialization, and had the ability to adapt to change. Her
social contact was limited because she was afraid to drive. (Id. at 637). On the
psychiatric review technique, Milne stated that Beckett had affective, anxietyrelated, and substance addiction disorders (Id. at 640), and a major depressive
disorder, mild to moderate. (Id. at 643). Milne stated that Beckett had moderate
restriction of activities of daily living, but no difficulties in maintaining social
functioning, concentration, persistence, or pace. (Id. at 650). She had no episodes
of decompensation. (Id.). Milne stated that Beckett’s allegations were partially
consistent with the overall pattern of evidence. (Id. at 652). The estimated GAF of
62 indicated only mild impairment in overall functioning. Beckett retained the
capacity to handle simple instructions. Milne stated that although Beckett’s
condition was severe, it was not consistent with any claim of marked psychological
limitations. (Id. at 652).
Gerald Spethman, M.D., affirmed Reed’s RFC assessment. (Id. at 655).
Spethman noted that Beckett had a credibility problem because she stated that light
rate social, occupational and psychological functioning ‘on a hypothetical
continuum of mental-health illness.’” Pate-Fires v. Astrue, 564 F.3d 935, 937 n. 1
(8th Cir. 2009) (quoting American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 1994).
was a precipitating factor for migraines, but then stated that she liked to sit in the
sunlight and read. And she alleged that dizziness and weakness prevented her from
driving, but she drove herself to the mental evaluation on February 14, 2011. (Id.).
C. Hearing Testimony
At a hearing on October 20, 2011, Beckett testified that she has pain in her
feet, hands, and neck from rheumatoid arthritis. She cannot grip items with her
hands and has a hard time getting up fast and moving fast because of the arthritis.
(Id. at 40). Beckett said she takes insulin five or six times each day. (Id.). She
stated that she has neuropathy in her legs almost up to her knees and it has caused
her to fall. (Id. at 41). She said that her blood pressure drops when she stands,
which causes her to need to lie down or sit down and put up her feet, but she has
never passed out. (Id. at 42-43). She said she needs to take five or six breaks daily.
(Id. at 42).
Beckett said she fasts when she’s working because she does not know how
her stomach is going to react to food and she sometimes has diarrhea. She said she
needs to stay close to a restroom at work because she has diarrhea and vomiting,
although medication has calmed down her stomach. She says she drives 30 miles
to work and there is no restroom between her house and her job. (Id. at 43).
Beckett said she had previously had panic attacks, when it feels as if
everything is closing in. Anti-anxiety medication helped at times. (Id. at 44).
Beckett said her sleep was interrupted by the need to go to the bathroom. (Id. at
45). If she is moving around she claimed she can tolerate 30 minutes of activity,
but if she is standing in one spot, she needs to take a break after 15 minutes. (Id. at
46). She said she can sit for 15 minutes before she needs to switch positions. She
can climb about 10 steps and then needs to take a break. Beckett said she has
difficulty dressing because of buttons and zippers. Using the computer hurts her
fingers she claims. (Id. at 46). Beckett said her husband helps her do most of the
cooking and heavy chores around the house. (Id. at 47).
At the time of the hearing, she was working 10 hours each on Saturday and
Sunday as a home health caregiver. The job required her to drive 60 miles round
trip. (Id. at 45, 54). After working, Beckett said it took her two days to get her
body back to normal. (Id. at 49-50). She had considered trying to find work that
was less strenuous, but there was no other work that she enjoyed. (Id. at 51).
The vocational expert, Janice Hastert, stated that a claimant similar to
Beckett could not perform any of her past work. However, there were
representative jobs available to her, such as a surveillance system monitor, credit
checker, or document preparer. There were a sufficient number of those jobs in the
state of Nebraska and nationally. (Id. at 56).
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 Beckett is not disabled. (See Tr. at 12-23).
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 Beckett had not engaged in
substantial gainful activity since July 1, 2010, the application date. (Tr. at 17).
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 Beckett had the following severe combination of impairments: diabetes
mellitus type I, rheumatoid arthritis, depression, and an anxiety disorder. (Tr. at
17). The ALJ found that it was not medically determinable that Beckett suffered
from COPD and asthma, because no acceptable medical source had diagnosed
Beckett with either COPD or asthma. (Id.). The record only documented that
Beckett had experienced some symptoms of exercise-induced asthma that were
exacerbated by her continued smoking of both tobacco and marijuana. In addition,
the ALJ found it significant that Beckett had twice denied having any history of
asthma in September and December 2010. The record also did not include any
diagnostic testing that would objectively document Beckett’s alleged respiratory
impairments. (Id. at 18).
Beckett also alleged three other impairments which the ALJ found to be
non-severe: meningioma, a right foot impairment, and an eye impairment. (Id.).
Although Beckett had a small meningioma in the left frontoparietal region of her
brain, the record did not document any functional limitations in the ability to
perform basic work activities because of the meningioma. The evidence also
showed that Beckett had a history of a foot impairment, but again the record
showed no functional limitations because of it. Beckett had also had cataract
surgery, but the record did not show any functional limitations in her ability to
perform basic work activities because of an eye impairment. The ALJ noted that
Beckett had reported she was able to drive and read for several hours each week
without any significant limitations. (Id.).
The ALJ also found that Beckett’s abuse of marijuana was a non-severe
impairment. The record did not document that Beckett experienced any functional
limitations in her ability to perform basic work activities as a result of the
marijuana abuse. (Id.).
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
“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 Beckett did
not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments. (Tr. at 18). The ALJ noted
that the impairments no longer include a specific listing for diabetes mellitus, but
diabetic peripheral and sensory neuropathy are evaluated as neurological
impairments. Beckett’s diabetes did not meet the criteria for peripheral
neuropathies because she did not have peripheral neuropathy with disorganization
of motor function in two extremities, resulting in sustained disturbance of gross
and dexterous movements, or gait and station, in spite of prescribed treatment. (Id.
The ALJ also determined that Beckett’s rheumatoid arthritis did not satisfy
the requirements for inflammatory arthritis. (Id.). The ALJ found that Beckett did
not have a persistent deformity in one or more major peripheral weight-bearing
joints resulting in the inability to ambulate effectively or in one or more major
peripheral joints in each upper extremity resulting in the inability to perform fine
and gross movements effectively. In addition, Becket did not have inflammation or
deformity in one or more major peripheral joints; ankylosing spondylitis or other
spondyloarthropathies; or repeated manifestations of inflammatory arthritis, with at
least two constitutional symptoms or signs. (Id.).
The ALJ also found that the severity of Beckett’s mental impairments,
considered singly and in combination, did not meet or medically equal the criteria
for affective or anxiety-related disorders. (Id.). The ALJ determined that Beckett
had no more than a moderate restriction in activities of daily living as she is
generally able to meet her personal care needs. The ALJ found that Beckett had no
more than mild difficulties in social functioning. (Id. at 20). The ALJ also found
that Beckett had no more than moderate difficulties with concentration,
persistence, or pace. The ALJ noted that Beckett had not experienced any episodes
of decompensation. Thus, the ALJ determined that she had not experienced an
exacerbation or temporary increase in the symptoms or signs of her mental
impairments, accompanied by a loss of adaptive functioning, which lasted for at
least two weeks. (Id. at 20).
Step four requires the ALJ to consider the claimant’s RFC3 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 found that
Beckett had no past relevant work, had at least a high school education, and was
able to communicate in English. (Tr. at 25). The ALJ found that Beckett had the
RFC to perform a range of sedentary work as defined in 20 C.F.R. § 416.967(a).
(Tr. at 21). The ALJ determined that Beckett must be able to alternate between
sitting and standing once every 30 minutes, should avoid concentrated exposure to
extreme heat, extreme cold, wetness, vibrations, and fumes, could only
occasionally climb, balance, stoop, kneel, crouch, and crawl, and can perform only
simple work. (Id.). The ALJ considered Beckett’s age, education, and work
experience, as well as the entire record of medical evidence, including reports from
nonexamining state agency consultants, and the RFC, and determined there are
jobs that exist in significant numbers in the national economy that Beckett could
perform. (Id. at 26). The ALJ determined that the VE’s testimony was consistent
with the information contained in the Dictionary of Occupational Titles. (Id.).
Based on the VE’s testimony, the ALJ concluded that Beckett was capable of
making a successful adjustment to other work that exists in significant numbers in
The assessment of a claimant’s residual functional capacity measures the
highest level of physical and mental activity the claimant can perform despite his
or her limitations. See 20 C.F.R. § 404.1545 and 20 C.F.R. § 416.945. See also
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a))
(residual functional capacity is what the claimant is able to do despite limitations
caused by all of the claimant's impairments.).
the national economy, and therefore, a finding of not disabled was appropriate. (Id.
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
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
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).
Beckett asserts that the Commissioner’s 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. I will address Beckett’s specific arguments below.
Beckett argues that the hypothetical question asked of the vocational expert
failed to include her moderate limitations on concentration, persistence and pace.
(Plf’s Brf at 4).
The ALJ asked the VE to assume a claimant who was the same age as
Beckett, who had the same education, work history and background, who was
limited to work at the sedentary level, who needed to have a job in which she could
alternate sitting and standing approximately every 30 minutes, who should avoid
concentrated exposure to extreme cold or heat, wetness, vibrations and fumes, who
could only occasionally climb, balance, stoop, kneel, crouch and crawl, and who
was limited to simple work. (Tr. at 55). When the ALJ asked whether such a
claimant could perform any of Beckett’s past work, the VE responded “no.” (Id. at
56). However, the VE stated that such an individual could perform jobs in the
sedentary, unskilled category, which included jobs such as surveillance system
monitor, of which there were 315 in Nebraska and 24,000 nationally; credit
checker, of which there were 315 in Nebraska and 24,000 nationally; or document
preparer, of which there were 160 in Nebraska and 30,000 nationally. The VE
stated that those jobs are representative. (Id.).
In support of her argument, Beckett cites O’Connor-Spinner v. Astrue, 627
F.3d 614 (7th Cir. 2010), in which the appellate court determined that the ALJ’s
hypothetical did not supply the VE with adequate information to determine
whether the claimant could perform jobs in the national economy. The court stated
that the ALJ is required to orient the VE to the totality of a claimant’s limitations,
including deficiencies in concentration, persistence, and pace. Id. The most
effective way to ensure that the VE is apprised fully of the claimant’s limitations is
to include all of them directly in the hypothetical. Id.
However, the court noted that it had not insisted on a per se requirement that
the ALJ use the specific terminology of “concentration, persistence, and pace” in
the hypothetical. Id. If the record shows that the VE independently reviewed the
medical record or heard testimony addressing a claimant’s limitations, the court
may assume that the VE is familiar with those limitations. Id. In that case, the ALJ
asked a series of increasingly restrictive hypotheticals to the VE, from which the
court inferred that the VE’s attention was focused on the hypotheticals and not on
the record. In addition, there was no evidence that the VE reviewed the claimant’s
medical history, as opposed to her work history, or heard testimony about the
limitation. Id. The court held that in most cases, the ALJ should refer expressly to
limitations on concentration, persistence, and pace in the hypothetical “in order to
focus the VE’s attention on these limitations and assure reviewing courts that the
VE’s testimony constitutes substantial evidence of the jobs a claimant can do,” and
it remanded the matter for further proceedings. Id. at 621.
In the case at bar, the VE was present for the hearing and heard Beckett’s
testimony. (Tr. at 37). The VE testified that she had prepared a work history
analysis. (Id. at 55). Beckett does not challenge the ALJ’s credibility finding or
determination of her RFC. The hypothetical question was based on the RFC
finding. The ALJ found that Beckett’s statements concerning the intensity,
persistence, and limiting effects of her symptoms were not credible because they
were inconsistent with the RFC assessment. (Id. at 22).
The ALJ found that Beckett had no more than moderate difficulties with
concentration, persistence, or pace, as evidenced by her ability to use a touch pad
computer, operate a motor vehicle, and attend to her surroundings and navigate
simultaneously and independently. The ALJ found that Beckett was able to sustain
the requisite level of attention and concentration to attend church regularly, read
the Bible, and watch television for up to two hours at a time. She was able to help
her son with his homework and was able to perform multi-step household chores.
Most significantly, Beckett was able to successfully work two 10-hour shifts as a
home health aide. (Id. at 20).
A hypothetical question posed to the vocational expert is sufficient if it sets
forth impairments supported by substantial evidence in the record and accepted as
true by the ALJ. Hunt v. Massanari, 250 F.3d 622 (8th Cir. 2001). The hypothetical
question must capture the concrete consequences of the claimant's deficiencies. Id.
In addition, the ALJ may exclude any alleged impairments that he has properly
rejected as untrue or unsubstantiated. Id. In this case, the ALJ did not specifically
include concentration, persistence, and pace in the hypothetical question presented
to the VE. But the ALJ found that Beckett had no more than moderate difficulties
with those attributes. (Tr. at 20). The ALJ explained his reasoning and identified
the inconsistencies between Beckett’s claims and the medical evidence in the
When the ALJ articulates the inconsistencies on which he relies in
discrediting the claimant’s subjective complaints, and when those inconsistencies
are supported by the record, the credibility finding should be affirmed. Hall v.
Chater, 109 F.3d 1255 (8th Cir. 1997). The ALJ referred to the evidence that a
rheumatoid factor test performed in January 2010 showed a negative result for
rheumatoid arthritis. In addition, she had not been placed on any disease-modifying
antirheumatic drugs, and her only significant treatment was a self-prescribed baby
aspirin regimen. The record did not corroborate her allegations with any substantial
evidence. (Tr. at 22).
Although a claimant’s subjective complaints may not be discounted by the
ALJ solely because the objective medical evidence does not fully support them, the
ALJ may find that these allegations are not credible if there are inconsistencies in
the evidence as a whole. Buckner v. Astrue, 646 F.3d 549 (8th Cir. 2011). A
reviewing court will defer to the ALJ's credibility finding if the ALJ explicitly
discredits a claimant's testimony and gives a good reason for doing so. Id.
The ALJ gave little weight to the statement from Beckett’s treating
physician, States, because it was not consistent with the record as a whole. (Tr. at
24). The opinion was internally inconsistent because States opined that Beckett
was unable to maintain persistence and pace to engage in competitive employment,
but States’ also concluded that Beckett’s symptoms could seldom be expected to
interfere with her attention and concentration. States’ opinion was also inconsistent
with Beckett’s own reports regarding the activities of daily living and work
activities in which she engages. States opined that Beckett could perform work
activities for between two and four hours per day, for between four and six days
per week. He also stated that Beckett could perform work at less than sedentary
level for no more than four hours per day, but she was currently engaged in work
activities at the medium exertional level for 10 hours per day. (Id.).
The ALJ gave significant weight to the opinions of the state consultants. The
nonexamining state agency psychological consultant, Milne, opined that Beckett
was moderately limited in her ability to perform activities within a schedule, but
she was capable of understanding, remembering, and carrying out short and simple
instructions, possessed adequate abilities to concentrate and focus, and had the
ability to adapt to changes. (Id.). He concluded that Beckett had moderate
restrictions regarding activities of daily living, but no restrictions with either social
functioning or her ability to maintain concentration, persistence, or pace. (Id. at
24). The ALJ noted that the state agency consultants reached their conclusions on
the basis of careful analyses of Beckett’s longitudinal medical history and their
opinions were generally consistent with the history. (Id. at 25).
The ALJ also found the opinion of the consultative examiner, Schroeder,
was entitled to significant weight because it was consistent with the findings of the
detailed mental assessment she performed on Beckett. Schroeder’s conclusions
were consistent with the record as a whole and not inconsistent with any
substantial evidence of record. (Id.). The ALJ determined that the RFC assessment
was supported by the record as a whole, including the medical evidence of record,
the opinions, and Beckett’s work history. (Id.).
I find no error in the hypothetical question asked by the ALJ. Although it did
not include every possible impairment as alleged by Beckett, the ALJ properly
excluded impairments that the ALJ found were not substantiated by the record. The
ALJ properly explained his reasons for finding that Beckett was not disabled and
detailed the inconsistencies in the record.
Beckett also argues that the hypothetical failed to discuss the fact that
Beckett was working two days per week which required a two-day recuperation
period. (Pl.’s Brf at 6). The ALJ found it probative that Beckett was currently
performing work activities as a home health aide, which is semiskilled work
generally performed at the medium exertional level. The ALJ determined that her
ability to work for 20 hours per week at that level indicated that Beckett was
capable of performing work activities at a less than sedentary exertional level on a
fulltime basis. (Tr. at 23).
It is not unreasonable for an ALJ to note that a claimant’s daily activities,
including part-time work, were inconsistent with her claim of disabling pain.
Harris v. Barnhart, 356 F.3d 926 (8th Cir. 2004).
In addition, the ALJ noted that
Beckett stated she had limited her consideration of alternative jobs to those which
she would enjoy. The ALJ found that Beckett’s current underemployment was
likely a lifestyle choice and not a situation imposed by her mental and physical
impairments. (Tr. at 24).
The ALJ also found it probative that Beckett reported engaging in basic
work activities and activities of daily living which were inconsistent with her
allegations of disability. (Id.). She was generally able to meet her personal care
needs. (Id. at 19, 203). She had a driver’s license and drove on a regular basis,
including a 60-mile roundtrip commute to her part-time job. (Id. at 19, 45, 50, 54).
Beckett was able to perform routine household chores, including sweeping, doing
laundry, washing dishes, and cooking. (Id. at 19, 203). She reported helping an
elderly neighbor with housework in February 2011. (Id. at 19, 623, 626). The ALJ
found Beckett’s allegations to be less than credible.
“[A]cts such as cooking, vacuuming, washing dishes, doing laundry,
shopping, driving, and walking, are inconsistent with subjective complaints of
disabling pain.” Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009). “Acts
which are inconsistent with a claimant's assertion of disability reflect negatively
upon that claimant's credibility.” Id., quoting Johnson v. Apfel, 240 F.3d 1145,
1148 (8th Cir. 2001).
The combination of part-time work and the ability to take part in activities of
daily living support the ALJ’s finding that Beckett is not disabled. The ALJ took
into consideration her testimony and statements about her abilities and weighed
that information with his determination as to her credibility. I find no error in the
failure to include the part-time work in the hypothetical question.
The ALJ considered Beckett’s age, education, work experience, and RFC,
and determined there are jobs that exist in significant numbers in the national
economy that Beckett could perform. (Tr. at 26). The ALJ determined that the
VE’s testimony was consistent with the information contained in the Dictionary of
Occupational Titles. (Id. at 26). Based on the VE’s testimony, the ALJ concluded
that Beckett was capable of making a successful adjustment to other work that
exists in significant numbers in the national economy, and therefore, a finding of
not disabled was appropriate. (Id. at 27). The ALJ based his decision on the entire
medical record, testimony at the hearing, and opinions of experts. 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
Dated April 7, 2014.
BY THE COURT
Warren K. Urbom
United States Senior District Judge
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