Beek v. Astrue

Filing 22

MEMORANDUM AND ORDER - The decision of the Commissioner is affirmed, and a separate Judgment in favor of the Defendant will be entered. Ordered by Magistrate Judge F.A. Gossett. (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JERRY BEEK,

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

CASE NO. 8:09CV468

MEMORANDUM
AND ORDER

Now before the court is the Complaint of Plaintiff Jerry Beek. (ECF No. 1.) Beek
seeks review of the Commissioner of the Social Security Administration’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., and for Supplemental Security Income (SSI) benefits under
Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. The court has carefully considered the
transcript of the administrative record (ECF No. 12) and the parties’ briefs (ECF Nos. 13,
20 and 21). For the following reasons, the Commissioner’s decision will be affirmed.
PROCEDURAL BACKGROUND
Beek filed his application for disability insurance benefits on April 12, 2006. (Tr. at
73-77.) After his application was denied initially (id. at 52, 60–63) and on reconsideration
(id. at 54-59), he requested a hearing before an administrative law judge (“ALJ”) (id. at 51).
This hearing was held on December 10, 2008 (e.g., id. at 18), and in a decision dated
November 4, 2008, the ALJ concluded that Beek was not entitled to disability insurance
benefits (id. at 18-28).1 Beek then requested that the Appeals Council of the Social

1

The ALJ’s decision states, “It is noted that, on January 4, 2007, Mr. Beek filed an
application [for] the payment of supplemental security income benefits under Title XVI of

Security Administration review the ALJ’s decision. (Id. at 14.) This request was denied on
October 23, 2009 (id. at 7-9); therefore, the ALJ’s decision stands as the final decision of
the Commissioner of Social Security.
FACTUAL BACKGROUND
Beek alleges that he became disabled on April 30, 2006, due to diabetes, speech
problems, blindness in his right eye, and deafness. (Tr. at 81, 138.) He was born in
September 1964 (e.g., id. at 73); thus, he was 41 years old on the date of his alleged onset
of disability. He completed the 12th grade, and he had no special education classes. (Id.
at 85. But see id. at 188 (indicating that Beek graduated from the Iowa School for the Deaf
High School).) He has worked as a dishwasher and prep cook at a restaurant and as a
receiver at a brewing company. (Id. at 82.) Also, Beek testified that his landlord was
paying him $50 per week for maintenance work and cleaning. (Id. at 370.)
Medical Evidence2
On January 24, 2006, Beek visited Rachel Stearnes, D.O., at the Clarkson Family
Medicine Clinic in Omaha, Nebraska, with complaints of right arm pain. (Tr. at 217-18.)
He reported that he had been “repetitively pushing large heavy boxes” at work “when he

the Social Security Act, as amended, and that application has been escalated to the
hearing level.” (Tr. at 18.)
2

This review of the medical evidence will focus on records dating back to
approximately April 2006, which is the alleged disability onset date, and continuing through
the date of the hearing before the ALJ. It emphasizes the records cited by the parties in
their briefs. I note in passing that the records discussed in the Plaintiff’s brief date to April
2004, and that these records describe health problems very similar to those that will be
discussed in the following review. (See, e.g., Tr. at 243 (documenting Beek’s complaints
of peripheral neuropathy, low blood sugars, and diarrhea on April 26, 2004); see also Pl.’s
Br. at 3, ECF No. 13.)
2

started noticing the pain.” (Id. at 217.) Dr. Stearnes had been struggling with Beek “for
several months regarding his income and being able to afford his medications as well as
his insulin.” (Id. at 219.) She noted that Beek “has been very poor in compliance with his
diabetic medications” and “does not take care of himself.” (Id. at 217). More specifically,
she said that Beek was not taking his insulin or checking his blood sugar, was not
purchasing insulin because he “comes up with other things to buy,” was drinking “lots of
caffeine,” and was not eating “on a regular basis.” (Id.) Beek reported having “2 episodes
in the last 2 weeks where he woke up on the bathroom floor and did not know how he had
gotten there,” and Dr. Stearnes suspected that “these [were] secondary to either
hyperglycemic or hypoglycemic episodes.” (Id.) Dr. Stearnes examined Beek and found
no evidence of edema in his lower extremities, “no significant pain to palpation over the
musculature or joints,” “no evidence of lack of lymphatic drainage or clots,” and a bit of
swelling in his right fingers. (Id.) Dr. Stearnes provided Beek with samples of Celebrex to
help with his arm pain, instructed him to complete paperwork to “get a new case worker,”
and advised him to return in one week. (Id. at 218.)
On February 1, 2006, Dr. Stearnes noted that Beek “is again in a state of disaster.”
(Tr. at 216.) Her report states, “He is very tired. He has not been taking care of himself.
He continues to not be compliant with his glucose monitoring and insulin.” (Id.) Dr.
Stearnes decided that Beek needed “to be admitted for glucose regulation and social work
consultation.” (Id.)
On February 14, 2006, Beek visited Dr. Stearnes “for followup from his
hospitalization” for “uncontrolled diabetes mellitus type 2.” (Tr. at 214.) According to Dr.
Stearnes’ record, the “[p]urpose of his admission was to get social work involved, so that
3

they may help him afford his medications,” but “[t]hey were of little help.” (Id.) Beek
reported continued right arm pain, which he attributed to “pushing boxes around at work.”
(Id.) He also said that he was considering taking some time off work and quitting one of
his jobs in order “to get his sugars under control, and to get well and feel better.” (Id.)
Examination revealed no swelling or skin breakdowns on Beek’s lower extremities, apart
from a superficial blister on his left Achilles area. (Id. at 215.) The exam did reveal pain
in Beek’s right arm upon touching, flexion, and extension. (Id.) Dr. Stearnes instructed
Beek to continue taking his “Lantus insulin” as directed, and she expressed concern that
he might be taking it every 12 hours instead of every 24 hours. (Id. at 214-15.) She wrote
him “a note to excuse him from work until next Monday to get his blood sugars under better
control.” (Id. at 215.) She also gave Beek more Celebrex samples for his arm and
instructed him to use ice and to rest. (Id.)
Beek visited Dr. Stearnes again on February 21, 2006. (Tr. at 212.) He reported
feeling good after his week off and said that he was “working on getting himself into some
government housing.” (Id.) Dr. Stearnes noted that Beek “seems to be doing well with
compliance regarding his medicines within the last couple of weeks,” but she was
concerned that one of his medicines was causing him “lower extremity edema.” (Id.)
Indeed, after her examination revealed “some trace 1+ pitting edema on [Beek’s] lower
extremities bilaterally,” she ordered a medication change.

(Id.)

Dr. Stearnes also

increased Beek’s Lantus insulin prescription. (Id.)
On May 30, 2006, Beek returned for a follow-up with Dr. Stearnes. (Tr. at 210.) Dr.
Stearnes noted that in the past, Beek “worked too many hours and made too [much] money
to qualify” for Medicaid, but Beek had since “quit all of this jobs and now is currently in the
4

process of getting Medicaid.” (Id.) He had run out of some of his medicines, however, and
he had no money to replace them. (Id.) He complained of dizziness, weight loss, bilateral
leg pain, shortness of breath, and intermittent chest pain. (Id.) Dr. Stearnes noted that
Beek was “still smoking 1 pack of cigarettes per day.” (Id.) She also noted that he was
“stuttering[,] which is not new for him.” (Id.) There was no edema in Beek’s lower
extremities, but there were “several areas of scarring on his anterior shin from previous
sores,” and he had a blister that appeared “to be healing without too much difficulty.” (Id.)
Dr. Stearnes told Beek that he should “use the money that he uses for cigarettes to buy his
insulin,” and advised him to stop smoking. (Id. at 211.) She also told him that his leg pain
“is likely secondary to his sugars being poorly controlled.” (Id.) Dr. Stearnes advised Beek
to start back up on his insulin and return in one week for a follow-up. (Id.)
On June 14, 2006, Samuel E. Moessner, M.D., performed a consultative
examination of Beek. (Tr. at 185-196.) Beek reported that he had been “off his insulin
since April 2006,” and was no longer checking his blood sugars. (Id. at 185.) He also had
a history of vision and hearing difficulties and “a stuttering or stammering disorder, which
is chronic.” (Id.) Beek said that he lost the use of his right eye in childhood due to
complications from an attempted cataract extraction, and he wears a hearing aid in his right
ear. (Id. at 186.) With the hearing aid, he can hear conversational speech. (Id. at 189.)
Beek complained of “weakness in both of his legs with a lot of aching and pain,” “burning
in his feet” that causes him to wake at night, and problems “staying on his feet for any
length of time.” (Id. at 185-86.) He said that he could walk about eight blocks “without
much difficulty”–though he would have leg pain–and that he could “probably lift about 45
pounds when he has to,” but he could not do so frequently. (Id. at 186.) He said that he
5

could “only lie down for about two or three hours at a time” before “burning or shooting
pains in his feet or other symptoms” awaken him, and he said that he has problems
standing, sitting, balance, squatting, stooping, climbing stairs, bending, and twisting. (Id.)
He also told Dr. Moessner that “his headaches, dizzy spells, dyspnea and weakness cause
problems at work [because] other employees such as the head chef reported his problems
to the management and he was asked to take some time-off, and he has not been brought
back to work.” (Id. at 187.) Beek said that he has “abdominal discomfort at times” and
diarrhea with “occasional urgency of defecation” and “occasional accident during the night.”
(Id. at 189.) He had no driver’s license, but he walked or rode the bus when necessary.
(Id. at 188.)
Dr. Moessner examined Beek and noted that he appeared “frail” and “malnourished.”
(Tr. at 191.) He also noted that although Beek “turns his head slightly to the left as he
listens to questions, . . . his hearing seems quite adequate, [and he] even hear[s] some
whisper speech.” (Id. But see id. at 193 (noting that Beek occasionally asked Dr.
Moessner to repeat himself).) There was no cyanosis or edema in Beek’s extremities, but
there was a “trace of clubbing.” (Id. at 194.) His diagnoses included diabetes mellitus, type
2; history of congenital deafness, partially corrected with hearing aid on right ear; blindness
of the right eye; chronic stuttering or stammering disorder; right shoulder traumatic arthritis;
and history of gastroesophageal reflux disease. (Id. at 195.) Dr. Moessner noted that Beek
seems “reasonably intelligent,” but “does not have a particularly strong understanding of
diabetes or his other health problems.” (Id. at 196.) He also noted that he was concerned
about Beek’s recent weight loss. (Id.)

6

On July 6, 2006, Beek visited Dr. Stearnes with complaints of bilateral leg pain and
right lower extremity edema. (Tr. at 208.) He reported that “he started retaking his
medicines a few weeks ago and that is when he started noticing the swelling.” (Id.) His
sugars were “relatively good,” and his weight was up nine pounds from his May 2006 visit.
(Id.) His lower extremities had “several areas of scars from various skin breakdown,” and
he had “1+ to 2+ edema from the mid shin down, but [it was] nonpitting.” (Id.)3 Dr.
Stearnes instructed Beek to continue taking his medicine and checking his blood sugar.
(Id. at 209.)
On July 7, 2006, Glen Knosp, M.D., performed a physical residual functional
capacity assessment of Beek based on a review of the record. (Tr. at 158-167.) Dr. Knosp
opined that Beek could lift or carry 20 pounds occasionally and 10 pounds frequently, stand
or walk for about six hours in an eight-hour workday, and sit for about six hours in an eighthour workday. (Id. at 159.) He also opined that Beek could occasionally climb ramps or
stairs, balance, stoop, kneel, crouch, and crawl, but could not climb ladders, ropes, or
scaffolds. (Id. at 160.) Dr. Knosp noted that Beek was limited by blindness in his right eye
and his stammering disorder; that Beek should avoid moderate exposure to extreme cold;
and that Beek should avoid concentrated exposure to extreme heat and to hazards. (Id.
at 161-62.) Dr. Knosp wrote,
Claimant’s allegations are partially credible. He has poor control of
diabetes mellitus related to poor compliance. When compliant he had fair to
good control. He follows no special diet. He is blind in the right eye but
adequate vision in the left eye. He does have stammering problem with his
3

Nonpitting edema is “swelling of subcutaneous tissues that cannot be indented
easily by compression.” Stedman’s Medical Dictionary 612 (28th ed. 2006). Pitting edema,
in contrast, is swelling “that retains for a time the indentation produced by pressure.” Id.
7

speech. Hearing is adequate with right hearing aid. Claimant does not meet
or equal any listing and if compliant with medical care and advice, appears
capable of work as outlined in the RFC.
(Tr. at 167.)
On July 11, 2006, Dr. Stearnes wrote a letter to Elsa Miller at the Nebraska Health
and Human Services System. (Tr. at 199.) In this letter, Dr. Stearnes listed Beek’s
impairments and commented that his “list of medicines” was “quite extensive.” (Id.) She
then explained that Beek had difficulty controlling his blood sugars, partly because his job
schedule affected his diet. (Id.) She wrote that Beek functioned fairly well when he was
able to take his medications as prescribed, but he has had problems purchasing his
medication. (Id.) In conclusion, she expressed her hope that Beek would be given
Medicaid benefits to help him purchase his medications. (Id.) Also on July 11, 2006, Dr.
Stearnes completed a form for the Nebraska Health and Human Services System. On this
form, Dr. Stearnes indicated that Beek would be unable to obtain employment until his
blood sugars are controlled and his “secondary symptoms from poor glucose control
resolve.” (Id. at 200.)
Beek visited Dr. Stearnes again on July 13, 2006, and reported that his lower
extremity swelling had resolved. (Tr. at 206.) He also reported that his blood sugars had
been low in the morning. (Id.) On examination, no edema was found in the lower
extremities, and “[n]o obvious worsening in skin breakdown [was] noted.” (Id.) Dr.
Stearnes adjusted Beek’s diabetes medication and instructed him to call if he continued to
have low sugars. (Id.)
On July 28, 2006, Beek reported to Dr. Stearnes “pleuritic chest pain” that worsened
when he took a deep breath. (Tr. at 203.) Dr. Stearnes noted that Beek had a history of
8

coronary artery disease and “persistent chest pain on a regular basis that has been
deemed noncardiac in origin.” (Id.) Beek also reported that he had “only been taking
minimal medication secondary to financial difficulty,” that he was suffering from “persistent
diarrhea,” and that he had “some bruising in the areas of ulceration on his lower
extremities.” (Id.) Beek’s lower extremities were without edema, though he did have
“multiple areas of scarring and scabbing.” (Id. at 204.) Dr. Stearnes adjusted Beek’s
medication, but declined to order blood work due to the cost. (Id.) She diagnosed Beek’s
chest pain as pleurisy, and she gave him samples of Aleve. (Id.) She also gave him
samples of antibiotic ointment for his leg wounds, along with other medications. (Id. at
205.) In addition, Dr. Stearnes discovered that one of Beek’s medicines was making his
diarrhea worse, and Beek reported that his condition improved after he stopped taking that
medicine. (Id. at 202.)
On November 10, 2006, Dr. Stearnes wrote a letter to Dan Blum of “Diversion
Services” in Omaha requesting for Beek “any sort of medical assistance in [the] form of
money or help with . . . medicines.” (Tr. at 201.) She wrote that Beek had “a hard work
ethic and at one time was working three jobs, but because of this was unable to control his
diet and his sugars.” (Id.) She added that she advised him to cut back on his work to
improve his health, and that he is now “unable to work and therefore unable to afford his
medicine.” (Id.)
Dr. Stearnes wrote another letter concerning Beek on January 10, 2007. (Tr. at
198.)4 In this letter, Dr. Stearnes again noted that Beek did not function well without his

4

The letter does not specify an addressee.
9

medicines, that Beek was unable to afford his medicines, and that Beek “seems to have
fallen between the cracks as far as being able to obtain his medicines.” (Id.)
On January 24, 2007, Beek visited Dr. Stearnes with complaints of “no energy.” (Tr.
at 339.) He had been unable to purchase all of his medicines or strips to check his sugars.
(Id.) Dr. Stearnes noted that Beek was under a lot of stress due to his inability to obtain
medicine or qualify for Medicaid, and he was continuing to smoke. (Id.) She adjusted his
medication and noted that he might “need to be hospitalized to get better control of his
sugars so that he feel[s] better.” (Id.)
Beek returned to Dr. Stearnes for a follow-up on January 31, 2007. (Tr. at 338.) He
had no swelling in his lower extremities, but he was suffering from an upper respiratory
infection. (Id.) Dr. Stearnes advised Beek that she felt that he was able to work at least
part-time, and she told him that she planned to complete Beek’s disability paperwork
“accordingly.” (Id.)
Dr. Stearnes completed a physical functional capacity assessment form for Beek on
February 5, 2007. (Tr. at 268-69.) She opined that during the course of an eight-hour
workday, Beek could sit continuously for one hour, stand continuously for one hour, and
walk between 30 minutes and one hour. (Id.) She added that Beek could sit for a total of
eight hours during a workday, and he could stand or walk between five and eight hours per
workday. (Id.) Although she believed that he was capable of working for a total of eight
hours per day, she also indicated that his attendance at work would be “[i]nconsistent or
sporadic due to reasonably expected exacerbation of condition(s).” (Id.) Dr. Stearnes also
indicated that Beek could frequently lift up to ten pounds and occasionally lift up to 50
pounds during an eight hour workday. (Id.) She added, however, that his symptoms were
10

frequently “severe enough to interfere with attention, concentration, persistence and pace.”
(Id. at 269.)
On February 23, 2007, Beek reported to Dr. Stearnes that he had not been testing
his blood because he could not afford test strips, and he was feeling tired despite sleeping
a lot. (Tr. at 336.) An examination revealed “one small area of skin breakdown” on his
ankle, but it was “pretty superficial” and did not appear to be infected. (Id.)
On March 9, 2007, Dr. Stearnes completed a “Diabetes Mellitus Residual Functional
Capacity Questionnaire” for Beek. (Tr. at 270-74.) On this form, Dr. Stearnes listed Beek’s
symptoms and noted that they were reasonably consistent with his impairments. (Id. at
270-71.) In contrast to the form she completed in February, Dr. Stearnes opined that Beek
could sit or stand for up to only 30 minutes at a time, that he could sit or stand for a total
of about four hours during an eight-hour workday, that he could rarely lift 20 pounds, and
that he could never lift 50 pounds. (Id. at 271-72.) She also opined that Beek would “need
a job that permits shifting positions at will,” and that he would need unscheduled 15-minute
breaks every one or two hours.” (Id. at 272.) She added that his legs would need to be
elevated about 50% of the time if he were working in a sedentary job. (Id.) Finally, Dr.
Stearnes opined that Beek would likely be absent from work about four days per month due
to his impairments. (Id. at 274.)
Beek visited Dr. Stearnes again on March 23, 2007. (Tr. at 334-35.) Beek reported
that he had been forgetting to take his Lantus and that he had not been checking his blood
sugars “because he has not gotten a glucometer yet.” (Id. at 334.) He also admitted to
tobacco and caffeine use, despite having been counseled to stop both. (Id.) Beek reported
that he “recently did get his child support case dropped secondary to him being
11

unemployed,” and that he was “working on his SSI disability.” (Id.) He complained of leg
pain and difficulty sleeping. (Id.) Dr. Stearnes provided Beek with enough samples of
Lantus to “last him quite a while,” and noted that “it seems just as though social problems
for Jerry are keeping him from being able to get a little bit more healthy.” (Id. at 335.)
On April 9, 2007, Beek returned to Dr. Stearnes for a follow-up. (Tr. 332-33.) Dr,
Stearnes noted that she had been seeing Beek at no charge and providing him with free
samples of medicine, but Beek was still unable to afford a glucometer test strip. (Id. at
332.) He also said that he did not want to get a job because “he will lose his Section Eight
housing and his rent will go up from 10 dollars a month to over 400 dollars a month, and
he cannot really afford that right now.” (Id.) He said that “he might wait till this summer,
and if things do not change, he is probably going to end up having to get a job.” (Id.) Beek
complained of foot pain, and he reported that he had been picking at an ulcer on his ankle.
(Id.) On examination, Dr. Stearnes observed a one centimeter open ulceration on Beeks
ankle that was “pretty superficial,” and she noted that Beek had “pain to deep palpation”
on both plantar fascia. (Id.) She instructed Beek to ice his feet, provided him with BandAids, and instructed him to stop picking at his ulcer. (Id. at 332-33.)
Beek visited Dr. Stearnes again on June 13, 2007. (Tr. at 330.) Dr. Stearnes noted
that Beek “is able to work but really does not want to because then he will lose his stateprovided housing.” (Id.) He complained of chest pain. (Id.) An EKG showed “no acute
changes and no changes from previous EKG,” and a “[c]hest x-ray show[ed] no acute
cardiopulmonary findings.” (Id.) An examination revealed “some skin breakdown” on
Beek’s shin, without infection. (Id.) Dr. Stearnes thought that Beek should be admitted to

12

the hospital due to his poor diabetes control and chest pain, but Beek refused. (Id.) He
was asked to return for a follow-up in two weeks. (Id.)
Beek returned for a follow-up on June 27, 2007. (Tr. at 325.) He reported that
he was feeling relatively well, but he was experiencing swelling in his right foot and pain in
his calf. (Id.) On examination, Dr. Stearnes noted that Beek had “1+ to 2+ pitting edema
from the mid shin down” on his right leg, some tenderness in the calf, and some scabs on
his shin and ankle. (Id.) Dr. Stearnes provided Beek with sample medications, ordered a
venous Doppler to determine whether there was a clot in his right leg,5 and directed Beek
to follow up in two weeks with Dr. Rebecca Lancaster. (Id.)
On July 11, 2007, Beek visited Rebecca Lancaster, M.D., at the Nebraska Medical
Center Clarkson Hospital-University Hospital with complaints of swelling and ulcerations
on his right leg. (Tr. at 319.) Examination revealed “an ulcerated lesion with a little
granulation tissue on top and surrounding erythema” on the right leg and a second lesion
on the right ankle. (Id.) There was no pitting edema on the right leg, and it appeared to be
“about the same size as the left leg.” (Id.) Dr. Lancaster suspected that the edema was
“caused by the lesions,” and she instructed Beek to keep them covered, apply an ointment
that she supplied for him, and avoid picking them. (Id. at 319-20.)
Beek returned to Dr. Lancaster on August 7, 2007, and reported that he was falling
because he has been losing feeling in his legs. (Tr. at 317.) Testing revealed “some
decreased sensation over his foot and big toe.” (Id.) There was no evidence of edema,
and his ulcers appeared to be stable. (Id.) Dr. Lancaster offered to admit Beek to the
5

The record indicates that the right leg venous examination revealed “no evidence
of deep venous thrombosis or deep venous valvular incompetence.” (Tr. at 327.)
13

hospital “to get his blood sugars under control and to get him in touch with Social Work,”
but he refused. (Id. at 318.) She directed him to increase his Lantus and return in one
month. (Id.)
On September 7, 2007, Beek returned to Dr. Lancaster for a follow-up. (Tr. at 315.)
Dr. Lancaster noted that Beek was “finally . . . able to get in touch with the Diabetes Clinic
and get his lancets and strips for his glucose monitor,” and he brought in a blood sugar
book showing the range of his sugar levels. (Id.) He complained of chest pain with
shortness of breath and some leg ulceration. (Id.) He also reported that he had no interest
in stopping smoking and had not attempted to cut back. (Id.) On examination, Dr.
Lancaster found no edema and noted that although Beek had a few sores near his knees,
the sores observed during prior examinations had healed. (Id.) Beek’s heart showed a 2/6
systolic murmur, and Dr. Lancaster “strongly recommended” that Beek consider admission
to the hospital, but he “adamantly refuse[d].” (Id. at 315-16.) Dr. Lancaster directed Beek
to return on September 10 for a cardiac stress test. (Id. at 316.)
On September 28, 2007, Beek returned to Dr. Lancaster for a follow-up. (Tr. at
314.) Dr. Lancaster noted that although Beek’s EKG and stress test were normal, he still
complained of chest pain. (Id.)6
Beek visited Dr. Lancaster again on November 6, 2007. (Tr. at 312.) Beek reported
that he had not been eating regularly “because he is either not hungry or he has some
bouts of diarrhea when he eats.” (Id.) He added that despite taking Imodium pills, he
occasionally has accidents at night. (Id.) Beek also complained of weakness in his legs

6

The record of Beek’s September 28, 2007, visit with Dr. Lancaster is incomplete.
14

and chest pain. (Id.) Dr. Lancaster made no changes to Beek’s diabetes medicines
despite his fluctuating blood sugar readings, but she did provide him with free medication
samples. (Id. at 313.) She also recommended that he eat regular meals and increase his
Imodium, and she noted that her office would work with Beek to secure “Charity Care” and
“to get some of his medications covered through the I-Care Program.” (Id.)
On November 26, 2007, Beek returned to Dr. Lancaster for another follow-up. (Tr.
at 310.) Dr. Lancaster noted that, with one exception, Beek’s low blood sugar readings had
been eliminated. (Id.) Beek reported that he still experiences chest pain, though he was
not feeling the pain on this particular day. (Id.) He also reported that he had some
ulcerations on his shins and knees, but they were healing. (Id.) Because Beek’s low blood
sugar had been addressed, Dr. Lancaster ordered an increase in Beek’s Lantus, and she
was able to provide him with a supply of the medicine. (Id.)
Beek visited Dr. Lancaster again on December 19, 2007. (Tr. at 308.) Beek’s blood
sugars had been measured across a wide range, and he complained of chest pain and
shortness of breath. (Id.) He said that he was doing well with Imodium, but he was still
having some diarrhea. (Id.) After examining Beek, Dr. Lancaster noted that he had no
swelling, ulcerations, or foot sores. (Id.) She advised Beek to increase his Lantus, monitor
his blood sugars, and add fiber to his diet. (Id. at 308-09.) She also advised him to stop
smoking to address his shortness of breath. (Id. at 309.)
Beek returned to Dr. Lancaster’s office for a follow-up on March 24, 2008. (Tr. at
306.) He reported that he had not increased his Lantus, though he had plenty of the
medicine at home. (Id.) He also reported that his sugars had been elevated, that he often
felt fatigued, that he was experiencing numbness and tingling in his fingers, and that he had
15

some sores on his lower extremities. (Id.) An examination revealed some open scabs on
Beek’s ankles and some numbness in his fingers, though “overall [he had] some sensation
there.” (Id.) Dr. Lancaster advised Beek to increase his Lantus, call in to report his blood
sugar in five days, and schedule a follow-up in one week. (Id. at 307.) She also provided
him with samples of ointment for his sores. (Id.)
Beek followed up with Dr. Lancaster on April 4, 2008. (Tr. at 304.) Dr. Lancaster
noted that she spoke with Beek on the phone one week ago and, after learning that Beek’s
sugars remained elevated, ordered him to increase his Lantus again. (Id.) Beek reported
that he had gained about 14 pounds, but he had no chest pain or shortness of breath. (Id.)
He also reported swelling in his left leg, and he noted that he had been picking at the scabs
on his lower extremities. (Id.) Examination revealed “1+ pitting edema on the left lower
extremity and trace edema on [the] right lower extremity.” (Id.) Lesions on the right lower
extremity appeared to be closed and well-healed, and there was a superficial open lesion
on the left ankle. (Id.) Dr. Lancaster instructed Beek to split his Lantus into two doses,
continue using his ointment, and to follow up immediately if his swelling increased. (Id. at
305.)
On April 11, 2008, Beek followed up with Dr. Lancaster. (Tr. at 302.) Dr. Lancaster
noted that Beek’s blood sugars had been “very variable,” and that he had two hypoglycemic
episodes during the previous day. (Id.) Beek reported that he had not been eating regular
meals; instead, he “just seems to be eating all the time and quite frequently eats very
sugary foods.” (Id.) Beek denied chest pain or shortness of breath, and he said that his
ulcer and left leg swelling had improved. (Id.) Dr. Lancaster’s examination confirmed that
Beek’s ulcer was healing, and there was no lower extremity edema. (Id.) She advised
16

Beek that she was reluctant to raise his Lantus–despite some high blood sugar
readings–because of his low blood sugar episodes. (Id.) She expressed to him the
importance of eating regular meals so that his blood sugars and medicines can be
adequately controlled. (Id.) She also advised him to continue to use ointment on his ulcer.
(Id. at 303.)
Beek returned to Dr. Lancaster for a follow-up on April 18, 2008. (Tr. at 300.) He
reported that “he is still unable to eat at regular mealtime,” and “sometimes he will eat a
‘midnight snack’ and eat all through the night.” (Id.) He said that he could not eat regular
meals because he “works at odd hours.” (Id.) Several of his sugar readings were low. (Id.)
Examination revealed that Beek’s ulcer was almost completely scabbed over and was
healing well. (Id.) Dr. Lancaster ordered a decrease in the Lantus due to the low blood
sugar readings, and she asked Beek to try to eat regular meals and to return in two weeks
for a follow-up. (Id.)
On May 2, 2008, Beek visited Dr. Lancaster for a follow-up. (Tr. at 298.) Beek
reported that he was still not eating regular meals, and his blood sugars continued to be
variable. (Id.) He also reported that the ulcer on his left ankle was improving. (Id.) Dr.
Lancaster decided to change Beek’s treatment schedule by reducing his morning Lantus
and adding Humalog at meals. (Id. at 298-99.)
Beek returned for another follow-up on May 12, 2008, and reported to Dr. Lancaster
that he was doing well “and has not had as many low blood sugars.” (Tr. at 286.) His ulcer
was healing “very well.” (Id.) Dr. Lancaster made some adjustments to Beek’s medication
regimen and directed Beek to return in two weeks. (Id.)

17

On June 2, 2008, Beek followed up with Dr. Lancaster and reported that he was still
not eating regularly. (Tr. at 294.) Also, he was not always taking his medication with
meals. (Id.) He had several lower extremity abrasions from “just bumping into things,” and
he complained of diarrhea and bowel incontinence. (Id.) On examination, Dr. Lancaster
found no evidence of edema in the lower extremities, but there were some “openings of the
skin” that did not appear to be infected. (Id.) Dr. Lancaster directed Beek to take
medication and fiber supplements for his diarrhea and to comply “with the diet and taking
his insulin.” (Id.)
Beek followed-up with Dr. Lancaster again on June 17, 2008. (Tr. 292.) Dr.
Lancaster noted that Beek continued to have a poor diet, but he was “not interested in
seeing a dietician.” (Id.) Beek reported that his ulcers were healing. (Id.) Dr. Lancaster
recommended that Beek continue to watch his diet closely and to skip his insulin if he skips
a meal. (Id.)
On July 2, 2008, Beek visited Dr. Sonja Belz, M.D., at the Nebraska Medical Center
Clarkson Hospital-University Hospital for a follow-up. (Tr. at 290.) He complained of foot
pain and a headache. (Id.) Testing indicated “intact sensation throughout both feet despite
his complaint of foot pain.” (Id.) Dr. Belz gave Beek guidelines for taking his medication
and advised him that “his smoking is likely to continue to exacerbate pain in his extremities
and potentially poor blood supply.” (Id. at 291.) Beek was “not interested in trying another
medication for peripheral neuropathy at this time.” (Id.)
Beek returned for a follow-up with Dr. Belz on July 7, 2008, with complaints of leg
swelling and foot pain. (Tr. at 288.) An examination revealed “2+ pitting edema” on the left
leg and lesser swelling on the right. (Id.) There also was one superficial open wound on
18

Beek’s left knee, and Dr. Belz detected wheezing when examining Beek’s lungs. (Id.) Dr.
Belz believed that Beek’s swelling was “probably due to some right-sided heart failure,” and
she suspected that he likely had emphysema or COPD due to his wheezing and “significant
tobacco abuse.” (Id. at 289.) She ordered tests and prescribed new medications for Beek.
(Id.)
On July 29, 2008, Beek followed up with Dr. Belz and complained of lower extremity
edema. (Tr. at 280.) Dr. Belz noted that Beek presented a similar complaint “about a
month ago,” and Beek improved after using inhalers. (Id.) She also noted that her
concerns about Beek’s heart were allayed by a normal echocardiogram, but lung tests
“revealed mild obstructive disease probably consistent with emphysema.” (Id.) Beek
reported that he had “not done anything particular for his lower extremity swelling,” such
as wrapping his legs or elevating them, but they “improved on their own over the past
couple of days.” (Id.) He also reported that he continued to have chest pain, and although
the pain was worse when he smoked, he continued his smoking habit.

(Id.)

On

examination, Dr. Belz noted pitting edema 1+ to 2+ on both legs, “most notable around the
ankle but [extending] up halfway to the shin.” (Id.) She also observed “some superficial
abrasions” on Beek’s left heel and left knee, but no “acute infections, sores, or ulcers.” (Id.)
Dr. Belz opined that Beek’s edema appeared to be improving on its own and through the
use of inhalers, and she advised Beek to use the inhaler and to wrap and elevate his legs
“if they get bad.” (Id. at 281.) She also provided him with samples and a prescription for
an inhaler, and she advised him to stop smoking. (Id.)
Beek visited Dr. Belz on August 13, 2008, with complaints of ringing in his ears,
headache, fatigue, and numbness in his left pinky finger. (Tr. at 344.) Beek reported that
19

his numbness occasionally extended up into his hand and arm. (Id.) Dr. Belz noted that
Beek’s blood sugar readings “[made] no sense”; specifically, the readings were lower after
Beek ate a meal even though he took only a small amount of Humalog. (Id.) An
examination of the left finger revealed “slightly decreased pinprick sensation compared to
the other fingers.” (Id.) Dr. Belz directed Beek to stop taking mealtime insulin and use only
Lantus. (Id. at 345.) She also noted that Beek’s finger numbness was consistent with ulnar
neuropathy, and she instructed him to use Advil, rest his arm, and avoid putting pressure
on the ulnar area. (Id.) She hoped to get Beek a hearing screen to address his tinnitus.
(Id.) She also noted, “I do believe that [social security disability] would be appropriate for
this patient as he has significant medical problems, is not receiving adequate healthcare,
and seems to be both physically and in some ways intellectually handicapped.” (Id.)
On August 18, 2008, Beek followed up with Dr. Belz. (Tr. at 342.) His “main
complaint” was numbness in his left fifth finger. (Id.) Dr. Belz noted, “For his diabetes,
[Beek] brings in his blood sugars. Again, they are still making no sense. He goes from 332
before breakfast to 32 after breakfast without taking any mealtime insulin, which I just
cannot account for.” (Id.) She expressed concern that “something is not going right with
the testing.” (Id.) She also noted that Beek might have a B12 deficiency given his “very
poor nutritional status.”

(Id.)

On exam, Beek’s left fifth finger showed “decreased

sensation to pinprick or monofilament testing” and “decreased vibratory sense . . .
compared to the others.” (Id.) Dr. Belz asked Beek to bring in his glucometer and test
strips during his next visit to “make sure that he is doing this correctly and compare it to our
own blood sugar measurements.” (Id. at 343.) She added, “my goal for him would be to

20

return to as many oral agents as possible and reduce the use of insulin in this patient as
I am not sure that he is sophisticated enough to do it very well.” (Id.)
On August 29, 2008, Dr. Belz wrote a letter stating that Beek has “poor health
exacerbated by the fact that he has limited access to health care and to medications that
he requires for optimal care.” (Tr. at 346.) Her letter also states that Beek “appears to
have some cognitive deficits” because he “has had difficulty understanding the complexities
of his disease, his drug regimen, and lifestyle choices.” (Id.) The letter concludes, “I
believe Mr. Beek has significant health problems including diabetes with complications. His
condition is deteriorating due to lack of healthcare and, I believe, limited intellectual
capacity. He would certainly benefit from disability status.” (Id.)
Beek’s Testimony
On August 27, 2008, Beek testified at the administrative hearing before the ALJ. (Tr.
at 364-385.) Beek testified that he stopped working in April 2006 because of his chest
pains, dizziness, and uncontrolled blood sugar. (Id. at 369.) He said that he had been
earning $50 per week over the last year by doing maintenance work, cleaning, and taking
calls for his landlord. (Id. at 369-70.) He explained that this work was part-time, and he
was allowed to work at his own pace and take breaks any time he needed to. (Id. at 379.)
He added that he could probably work 45 minutes without sitting down for a 15-minute rest.
(Id. at 380.) When not working, Beek spent his days “at home relaxing, watching TV or
play[ing] games on the internet.” (Id. at 381.) Beek said that he graduated high school and
could read, write, and handle his own money. (Id. at 370-71.) He also said that he gets
financial help for his medications, but he admitted that he had been using his money “to buy
smokes and pop and stuff like that.” (Id. at 383-84.)
21

Vocational Expert’s Testimony
During the hearing, the ALJ asked a vocational expert (“VE”) to consider a
hypothetical claimant with Beek’s age, education, and past work history who could lift up
to 20 pounds occasionally; could lift 10 pounds frequently; could sit for six hours and stand
for six hours in an eight-hour workday; could use his extremities without limitation; could
occasionally bend, stoop, kneel, and crawl; could not see with his right eye; could not use
ladders or scaffolds; could carry on a conversation despite occasional stuttering; should
avoid exposure to concentrated heat, cold, and hazards such as open machinery and
heights; should avoid even moderate exposure to noise; could hear effectively with a
hearing aid in “a non-noisy background”; and would need to go to the restroom two or three
times per day outside of regularly scheduled breaks. (Tr. at 386-87.) He then asked the
VE whether this person could return to any of Beek’s past relevant work. (Id. at 387.) The
VE responded negatively, explaining that “the limitation to moderate noise and lifting of 20
pounds would preclude him from both of [Beek’s] past occupations.” (Id.) The ALJ then
asked whether there were “other jobs in the regional or national economy that with those
limitations could be done.”

(Id.)

The VE responded affirmatively, stating that the

hypothetical individual could work in positions such as “counter attendant,” “office helper,”
and “storage facility rental clerk.” (Id. at 388.)
THE ALJ’S DECISION
After following the five-step sequential evaluation process set out in 20 C.F.R. §§
404.1520(a) and 416.920(a), the ALJ concluded that Beek is not disabled within the
meaning of the Social Security Act. (Tr. at 18-28.) At step one, the ALJ found that Beek
has not engaged in substantial gainful work activity since April 30, 2006, the alleged onset
22

date of disability. (Id. at 21.) At step two, the ALJ found that Beek has the following
“medically determinable impairments which have imposed more than slight limitations upon
his ability to function: insulin-dependent diabetes mellitus with diabetic neuropathy,
blindness in his right eye, hearing loss, chronic diarrhea, and a history of pericardial
effusions requiring surgical intervention in 1996.” (Id.) At step three, the ALJ found that
Beek does not have an impairment or combination of impairments that equals one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 22.) At step four,
the ALJ determined that Beek has the following residual functional capacity (“RFC”):
[Beek] can occasionally lift/carry items weighing 20 pounds, frequently
lift/carry items weighing up to 10 pounds, sit for 6 hours during an 8-hour
workday, and stand/walk for 6 hours during an 8-hour workday. He has the
unlimited use of his arms and hands. He can occasionally perform postural
activities including bending, stooping, kneeling, and crawling; however, he
cannot climb ladders or scaffolds and is blind in one eye. While he has
bilateral hearing loss, he can hear and carry on a normal conversation.
However, he should avoid environments with loud background noise, and
should also avoid exposure to temperature extremes and hazardous work
environments. Finally, because of reports of chronic diarrhea, he would need
a job that would allow him to go to the bathroom 2-3 times per day when
necessary.
(Id. at 22-23.) The ALJ also found that Beek is incapable of performing “his past relevant
work as a dishwasher, prep cook and brewery laborer.” (Id. at 25.) At step five, the ALJ
concluded that, given Beek’s age, education, work experience, and RFC, he is capable of
performing “various light occupations . . . that exist in the regional and national economies
in significant numbers. (Id. at 27.) By way of example, the ALJ found that Beek could work
as a “counter attendant,” “office helper,” and “storage facility rental clerk.” (Id.)7
7

“Through step four of this analysis, the claimant has the burden of showing that
[]he is disabled.” Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008). After the analysis
reaches step five, however, “the burden shift[s] to the Commissioner to show that there are
23

STANDARD OF REVIEW
The court 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)). “Substantial evidence is less than a preponderance but is enough that
a reasonable mind would find it adequate to support the conclusion.” Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008) (citations and internal quotation marks 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.”).
The court must also determine whether the Commissioner’s decision “is based on
legal error.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). The court does not owe
deference to the Commissioner’s legal conclusions. See Brueggemann v. Barnhart, 348
F.3d 689, 692 (8th Cir. 2003).

other jobs in the economy that [the] claimant can perform.” Id.
24

DISCUSSION
Beek claims that the Commissioner’s decision must be reversed because “the ALJ
improperly assessed Beek’s credibility under the regulations and case law” and “failed to
support his decision to reject Dr. Stearnes opinion.” (Pl.’s Br. at 9, ECF No. 13.) Each of
Beek’s arguments will be analyzed below in turn.
The ALJ’s Credibility Assessment
Beek argues that the ALJ made three distinct errors when discrediting his “subjective
complaints.” (Pl.’s Br. at 9.) First, Beek argues that “[t]he ALJ failed to consider the
evidence under the Polaski factors.” (Pl.’s Br. at 10.) As the Eighth Circuit has explained,
In assessing a claimant's credibility, the ALJ must consider all of the
evidence relating to the subjective complaints, the claimant's work record,
observations of third parties, and the reports of treating and examining
physicians. 20 C.F.R. § 404.1529(c)(3); Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). The ALJ should consider the claimant’s daily routine;
duration, frequency, and intensity of the pain; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional
restrictions. Polaski, 739 F.2d at 1322. When rejecting a claimant's
complaints of pain, the ALJ must make an express credibility determination,
detailing the reasons for discounting the testimony, setting forth the
inconsistencies, and discussing the Polaski factors.
Dipple v. Astrue, 601 F.3d 833, 836-37 (8th Cir. 2010). The ALJ is not required to discuss
each of these “Polaski factors” methodically, however, provided that he “acknowledges and
considers the factors before discounting a claimant’s subjective complaints.” Halverson v.
Astrue, 600 F.3d 922, 932 (8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th
Cir. 2009)).
As Beek notes, the ALJ’s decision does include a lengthy quote of 20 C.F.R. §§
404.1529 and 416.929; a statement that these regulations are consistent with Polaski; and
a quotation from Social Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996). (See Tr.
25

at 24-25; Pl.’s Br. at 10.) Beek characterizes this portion of the ALJ’s decision as
“boilerplate,” however, and submits that “[f]ollowing his quotation of the regulations, the ALJ
provided little analysis.” (Pl.’s Br. at 10.) More specifically, he states,
The ALJ declined to provide any indication that he considered the Polaski
factors. The ALJ never discussed any inconsistencies between Beek’s
subjective complaints and the medical evidence. The ALJ never noted that
Dr. Belz attributed Beek’s difficulty complying with his medications to
“cognitive deficits.” (R. 346). The ALJ did not address whether the ability to
work part-time was consistent with Dr. Stearnes’ findings that Beek would
need to take unscheduled breaks during the workday. (R. 272). Nor did the
ALJ discuss Dr. Stearnes’ conclusion that although Beek could perform some
work, his attendance would be inconsistent or sporadic due to his condition.
(R. 268, 274). Instead, the ALJ simply concluded that Beek’s part-time work
meant that any allegations of disability were not credible. (R. 25).
(Pl.’s Br. at 10-11.)
The court does not agree that the ALJ “declined to provide any indication that he
considered the Polaski factors.” (Pl.’s Br. at 10.) Aside from his general discussion of the
mechanics of a credibility analysis (see Tr. at 24-25), the ALJ indicated that he considered
the evidence relating to Beek’s subjective complaints (e.g., Tr. at 25 (“At his hearing, the
Claimant testified that he has been unable to work due to the symptoms described in the
summary of medical evidence set forth earlier in this decision.”); see also id. at 21-22),
Beek’s work record (e.g., Tr. at 20-21, 23, 25), reports of treating and examining physicians
(e.g., Tr. at 21-22, 23, 25), the effectiveness of medication and Beek’s treatment
compliance (e.g., Tr. at 22, 23), and Beek’s functional restrictions, (e.g., Tr. at 23). Also,
it cannot be said that the ALJ failed to discuss medical evidence that was inconsistent with
Beek’s claim of total disability. (See, e.g., Tr. at 21-23.) Moreover, the ALJ did not “simply
conclude[] that Beek’s part-time work meant that any allegations of disability were not
credible.” (Pl.,’s Br. at 11.) Rather, the ALJ found that Beek’s credibility was undermined
26

by the fact that he “worked three jobs on a part-time basis,” but “quit working only so that
he could qualify for Medicaid and/or other public assistance.” (Tr. at 25.)
Beek argues that the ALJ erred by failing to discuss Dr. Belz’s suspicions that Beek
might have cognitive deficits or Dr. Stearnes’ opinion that Beek might need unscheduled
breaks or have sporadic attendance. (Pl.’s Br. at 10-11.)8 But “an ALJ is not required to
discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does not
indicate that it was not considered.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
Indeed, the ALJ did consider Dr. Stearnes’ opinion that Beek’s attendance would be
sporadic (see Tr. at 23), and, as will be discussed below, he decided to discredit that
opinion. Also, the ALJ’s RFC assessment incorporates a finding that Beek “would need a
job that would allow him to go to the bathroom 2-3 times per day when necessary,” (Tr. at
23), which appears to address Beek’s allegation that he might need unscheduled breaks.
The ALJ’s decision does lead the reader to believe that the ALJ’s credibility analysis
is contained within a relatively short paragraph that focuses on Beek’s decision to quit
working solely to obtain government benefits. (See Tr. at 25.) But the decision, read as
a whole, sets forth additional reasons for discounting Beek’s testimony in accordance with
Polaski. The court finds that the ALJ’s decision is arguably deficient, but any deficiency is
limited to the ALJ’s “opinion-writing technique” and has no bearing on the outcome of the
case. See Owen v. Astrue, 551 F.3d 792, 801 (8th Cir. 2008) (citing Hepp v. Astrue, 511
F.3d 798, 806 (8th Cir. 2008)). In short, because the ALJ’s credibility determination is

8

The court notes, however, that the ALJ’s RFC assessment incorporates a finding
that Beek “would need a job that would allow him to go to the bathroom 2-3 times per day
when necessary.” (Tr. at 23.)
27

supported by good reasons and substantial evidence, this court owes deference to it.
Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (citing Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005)). See also Pense v. Barnhart, 142 F. App’x 954, 954-55 (8th Cir.
2005) (“While the ALJ could have more clearly articulated the bases for his credibility
findings, we conclude that the ALJ’s adverse credibility determination was supported by the
multiple valid observations the ALJ made in his discussion of the medical evidence and
Pense’s testimony and reports.”)
Second, Beek argues that the ALJ erred by discrediting Beek based on his ability
to do part-time work. (Pl.’s Br. at 11-13.) The ALJ’s decision states,
[T]he undersigned notes that, in spite of his allegations of total disability, the
Claimant has, at times pertinent herein, worked three jobs on a part-time
basis. He quit working only so that he could qualify for Medicaid and/or other
public assistance. In fact, he told Dr. Stearnes on April 9, 2007 that if he
obtained work, he would lose his public housing or face an increase in his
rent. Furthermore, . . . on June 13, 2007 Dr. Stearnes stated that Mr. Beek
“is able to work” but “really does not want to because then he will lose his
public housing.”
(Tr. at 25.) Thus, the ALJ did not discredit Beek simply because he held part-time work at
one point or another, but also because there was evidence that Beek avoided gainful
activity in order to retain his housing benefits. It was appropriate for the ALJ to consider
the fact that Beek engaged in part-time work when determining his RFC. See, e.g., Harris
v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); 20 C.F.R. § 404.1571 (“Even if the work you
have done was not substantial gainful activity, it may show that you are able to do more
work than you actually did.”); 20 C.F.R. § 416.971. (See also Pl.’s Br. at 11 (citing Harris,
356 F.3d at 930).) It was also appropriate for the ALJ to consider Beek’s lack of motivation
to return to work. Cf. Ramirez v. Barnhart, 292 F.3d 576, 581 & n.4 (8th Cir. 2002); see
28

also Tuttle v. Barnhart, 130 F. App’x 60, 61 (8th Cir. 2005) (“[E]vidence indicating a lack of
motivation to work may be used as a credibility factor so long as it is not a dispositive
one.”). There is no error.
Nevertheless, Beek submits that because he “never testified that he was completely
incapacitated because of diabetic neuropathy,” and because the record shows that he had
the ability to do part-time–but not full-time–work, “[h]is part-time work actually bolsters his
credibility.” (Pl.’s Br. at 12-13.) He also points to Dr. Stearnes’ statements that Beek had
a good “work ethic” but should “cut back on his work to address his declining health.” (Id.
(quotation marks omitted).) As noted above, it was proper for the ALJ to consider Beek’s
part-time work as evidence of ability to perform substantial gainful employment. Also,
although Dr. Stearnes did feel at times that Beek should cut back on his work in order to
gain control of his diabetes (see, e.g., Tr. at 215 (indicating that Dr. Stearnes gave Beek
a note excusing him from work “until next Monday to get his blood sugars under better
control”)), she also believed that he was capable of working “at least part-time” (see, e.g.,
id. at 338). Furthermore, on at least one occasion, Dr. Stearnes advised Beek to cut back
on work “so that he may qualify for Medicaid to get his medicines.” (Id. at 219.) The ALJ’s
conclusion that Beek was motivated to limit working is supported by substantial evidence.
Third, Beek argues that the ALJ erred by failing to recognize that Beek’s “limited
cognitive ability” excused his noncompliance with treatment.9

“[A]n ALJ may properly

consider the claimant’s noncompliance with a treating physician’s directions, including
failing to take prescription medications . . . and [failing to] quit smoking.” Choate v.

9

Beek appears to concede that he has not complied with his prescribed treatment.
29

Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (citations omitted). See also 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.”). If, however, there is “overwhelming
evidence in the record expressly indicating that the claimant’s severe mental disorder
caused [his] noncompliance with psychiatric medication,” noncompliance with treatment
should not be held against the claimant. Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir.
2010) (discussing Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009)).
Beek argues that the instant case is analogous to Pate-Fires, and the ALJ erred by
failing to recognize that his noncompliance was attributable to his “cognitive deficits.” (Pl.’s
Br. at 14.) The court is not persuaded. In Pate-Fires, the Eighth Circuit noted that “a
mentally ill person’s noncompliance with psychiatric medications can be, and usually is, the
‘result of the mental impairment itself and, therefore, neither willful nor without a justifiable
excuse.’” 564 F.3d at 945 (citations and brackets omitted). The court also observed that
“psychological and emotional difficulties may deprive a claimant of ‘the rationality to decide
whether to continue treatment or medication,’” and that all of the available evidence in the
case pointed to the conclusion that Pate-Fires’s noncompliance was a manifestation of her
schizoaffective or bipolar disorder. Id. at 945-46 (citation omitted). The court held that
under these circumstances, “the ALJ’s conclusion that Pate-Fires’s medical noncompliance
was not justifiable and precludes a finding of disability is not supported by substantial
evidence.” Id. at 946. Here, although there is evidence indicating that Dr. Belz and Dr.
Stearnes questioned Beek’s cognitive abilities, there is no evidence that Beek is “a mentally
ill person” who lacks “the rationality to decide whether to continue treatment or medication.”
Nor was Beek’s noncompliance a manifestation of the disorder that the foregone treatment
30

was meant to address. Moreover, unlike Pate-Fires, the evidence here does not point all
in one direction: there are facts indicating that Beek had incentives to avoid work and that
his noncompliance was willful. Indeed, during the hearing, the ALJ specifically asked Beek
about his noncompliance, and Beek gave the following answer.
Well, the reason at the time I didn’t have no Medicaid then. I didn’t
have the Medicaid, there’s no way I can afford to get my medications. But,
yeah, I’ll be honest with you, I have been using my money to buy smokes
and pop and stuff like that.
(Tr. at 384.)
Pate-Fires is distinguishable from the instant case, and the ALJ did not err to the
extent that he considered Beek’s noncompliance to undermine his credibility.
The Treating Source Statement from Dr. Stearnes
Beek argues that the ALJ erred by discounting Dr. Stearnes’ opinion that Beek was
disabled. (Pl.’s Br. at 15-18.) Because Dr. Stearnes is a treating physician, her opinion “is
accorded special deference under the social security regulations.” Vossen v. Astrue, 612
F.3d 1011, 1017 (8th Cir. 2010) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.
2000)). See also Dipple v. Astrue, 601 F.3d 833, 836 (8th Cir. 2010) (explaining that a
treating physician’s opinion “will be granted controlling weight when [it is] well-supported
by medically acceptable diagnostic techniques and not inconsistent with other substantial
evidence in the record.”). Nevertheless, an ALJ may discount a treating physician’s opinion
under certain circumstances. For example, a treating physician’s opinion may be given
reduced weight if other medical assessments are supported by superior medical evidence
or if the treating physician has offered an inconsistent opinion. See Wagner v. Astrue, 499
F.3d 842, 849 (8th Cir. 2007); Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001).
31

See also Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (noting that the ALJ must
“resolve conflicts among ‘the various treating and examining physicians’”). Also, “[w]hen
deciding ‘how much weight to give a treating physician’s opinion, an ALJ must also
consider the length of the treatment relationship and the frequency of examinations.’”
Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010) (quoting Casey v. Astrue, 503 F.3d 687,
692 (8th Cir. 2007)). See also 20 C.F.R. § 404.1527(d)(2)(i); 20 C.F.R. § 416.927(d)(2)(i).
“When an ALJ discounts a treating physician’s opinion, [s]he should give good reasons for
doing so.” Id.
In this case, the ALJ discounted Dr. Stearnes’ opinions that Beek was unable to
work, stating,
[S]he failed to cite any specific clinical or laboratory findings to support her
conclusions. Furthermore, she has admitted that the Claimant’s diabetes
could be controlled, and issued at least two of these statements [that Beek
was unable to work] in an attempt to qualify him for free medical treatment.
In point of fact, she had earlier encouraged the Claimant to reduce his
employment for the sole purpose of qualifying him for Medicaid.
Furthermore, on June 13, 2007 Dr. Stearnes stated that Mr. Beek “is able to
work” but “really does not want to because then he will lose his public
housing.” Thus, her opinions regarding the Claimant’s ability to work or
obtain employment, as well as her conclusions with respect to his functional
abilities, are simply not entitled to weight or consideration in accordance with
SSR 96-2p, SSR 96-5p, or SSR 06-3p.
(Tr. at 23 (citations omitted).)
Beek argues first that the ALJ erred by concluding that Dr. Stearnes failed to cite
specific clinical or laboratory findings to support her conclusions. (Pl.’s Br. at 16-17.) In
support of this argument, Beek states that “[t]he ALJ specifically disregarded Dr. Stearnes’
determination that Beek needed to elevate his legs when sitting for long periods,” even
though “the medical evidence in the record supports this limitation.” (Id. at 16.) He adds
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that he suffered from pitting edema in his lower legs due to his uncontrolled diabetes, and
that “[e]levation is a common treatment for edema in the lower legs.” (Id. at 16 & n.11
(citing Kelley’s Textbook of Internal Medicine 1150 (4th ed. 2000)).)
The court will assume that elevation is a common, appropriate treatment for edema
in the lower legs, and it is true that Beek experienced pitting and nonpitting edema at
certain times. It is noteworthy, however, that Beek refers me to no evidence that Dr.
Stearnes ever advised him to elevate his legs to treat his edema. Also, the record indicates
that Beek suffered from edema sporadically, and that it was ameliorated by treatments
other than leg elevation. As the ALJ correctly concluded, Dr. Stearnes’ opinion that Beek
would have to elevate his legs 50% of the time in a sedentary job is simply not supported
by clinical findings that Beek needed to elevate his legs with such frequency.
Beek also suggests that there is ample evidence that his “diabetes was out of
control,” including observations of edema and blood testing. (Pl.’s Br. at 17.) But the ALJ
did not discount Dr. Stearnes’ opinion that Beek’s diabetes was often out of control.
Rather, he discounted her opinion that Beek was unable to work because of his diabetes
due to the functional restrictions it imposed on him. Beek’s claim that he clearly does suffer
from diabetes–a point not in dispute–does not address the relevant issue.
Finally, Beek argues that the ALJ erred by crediting Dr. Stearnes’ statements that
Beek could work while discrediting her assessment of Beek’s functional capacity and her
suggestion that Beek forgo work until his blood sugars were controlled. (Pl.’s Br. at 17-18.)
The question of whether an individual is disabled is an issue that is reserved to the
Commissioner, and a treating physician’s opinion on such a matter is not “entitled to
controlling weight or special significance.” SSR 96-5p, 1996 WL 374183, at *2 (July 2,
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1996).

“However, opinions from any medical source on issues reserved to the

Commissioner must never be ignored.” Id. at *3. “If the case record contains an opinion
from a medical source on an issue reserved to the Commissioner, the adjudicator must
evaluate all the evidence in the case record to determine the extent to which the opinion
is supported by the record.” Id. It was appropriate for the ALJ to consider Dr. Stearnes’
statement that Beek could work but simply did not want to in order to preserve his benefits,
and it was also appropriate for him to consider the fact that Dr. Stearnes advised Beek to
reduce his workload solely to qualify for Medicaid. To the extent that Dr. Stearnes’ opinions
are in conflict, it is the ALJ’s function to resolve the conflicts in light of the record as a
whole. E.g., Heino v. Astrue, 578 F.3d 873, 879-80 (8th Cir. 2009). The ALJ’s decision to
afford greater weight to Dr. Stearnes’ opinion that Beek was capable of work was supported
by substantial evidence, and therefore it cannot be reversed “even if inconsistent
conclusions may be drawn from the evidence.” McNamara v. Astrue, 590 F.3d 607, 610
(8th Cir. 2010).
CONCLUSION
For the reasons discussed above, the court concludes that the Commissioner’s
decision denying benefits must be affirmed.
IT IS ORDERED that the decision of the Commissioner is affirmed, and a separate
Judgment in favor of the Defendant will be entered.
DATED this 8th day of June 2011.
BY THE COURT:
S/ F.A. Gossett, III
United States Magistrate Judge
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