Kermoade v. Astrue
MEMORANDUM AND ORDER - The Commissioners decision is affirmed; The appeal is denied; and Judgment in favor of the Defendant will be entered in a separate document. Ordered by Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. ASTRUE,
Commissioner of the Social Security
CASE NO. 8:10CV396
This matter is before the Court on the denial, initially and on reconsideration, of the
Plaintiff’s disability insurance (“disability”) benefits under the Social Security Act (“Act”), 42
U.S.C. §§ 401, et seq., and supplemental security income (“SSI”) benefits under Title XVI
of the Act, 42 U.S.C. §§ 1381, et seq. The Court has carefully considered the record and
the parties’ briefs,1 and the decision of the Commissioner will be affirmed for the reasons
The Plaintiff, Cindy Kermoade, filed for disability and SSI benefits on May 2, 2006.
(Tr. 148-57.) Kermoade alleges that she has been disabled since August 31, 2004, based
on hepatitis C antibodies, asthma, arthritis, partial hearing loss, carpal tunnel syndrome,
depression, stomach problems, restless leg syndrome, and a hernia. (Tr. 172, 218, 226.)
(Tr. 148, 153.) At the administrative hearing, Kermoade amended her alleged onset date
to January 18, 2006, and her attorney stated that her primary complaints were arthritis and
carpal tunnel syndrome. (Tr. 31.) Kermoade’s claims were denied initially and on
The Plaintiff’s reply brief (Filing No. 23) was not considered. In its briefing
schedule, the Court clearly did not contemplate a reply Brief. (Filing No. 16.)
(Tr. 79-80, 82-83.)
An administrative hearing was held before
Administrative Law Judge (“ALJ”) Jan E. Dutton on February 25, 2009, and September 24,
2009. (Tr. 28-77.) On September 30, 2009, the ALJ issued a decision concluding that
Kermoade is not “disabled” within the meaning of the Act and therefore is not eligible for
either disability or SSI benefits. (Tr. 15-25.) The ALJ determined that, although Kermoade
suffers from severe impairments, she has the residual functional capacity to perform light
work such as that of a production assembler, cashier II, or hand packager. (Tr. 17-24.)
The Appeals Council denied Kermoade’s request for review. (Tr. 1-4.) Kermoade now
seeks judicial review of the ALJ’s determination as the final decision of the Defendant, the
Commissioner of the Social Security Administration (“SSA”).
Kermoade claims that the ALJ’s decision was incorrect because the ALJ failed to:
(1) explain the weight given to the opinion of Dr. Spethman, a state agency physician; (2)
explain the weight given to the opinion of Dr. Anil Agarwal, a consultative examiner; and
(3) support residual functional capacity findings with substantial evidence.
Upon careful review of the record, the parties’ briefs and the law, the Court
concludes that the ALJ’s decision denying benefits is supported by substantial evidence
on the record as a whole. Therefore, the Court affirms the Commissioner’s decision.
On August 27, 2004, Kermoade reported pain in her right arm to her medical
provider, stating that she could not lift her arm and it felt “light.” The provider noted that her
left hand was swollen. (Tr. 247.)
On March 1, 2005, Kermoade told her medical provider that she could not work
because her child had attention deficit hyperactive disorder (“ADHD”) and she could not
leave the child unsupervised in school for six hours daily. (Tr. 245.)
On August 11, 2005, Kermoade complained of an earache and cough with worsening
pain, ringing, and popping in her ear. (Tr. 244.) On August 25, 2005, Kermoade again
reported a “plugged” right ear with hearing difficulty. She was assessed with otititis,
resolving. (Tr. 243.)
On November 23, 2005, Kermoade went to the emergency room complaining of
chest pain. (Tr. 274.) A computerized tomography scan of her abdomen and chest x-rays
were unremarkable. (Tr. 286, 291.) Her diagnosis was reflux with chest pain. (Tr. 278.)
On December 8, 2005, an otolaryngologist evaluated Kermoade’s hearing and
determined that she had left conductive hearing loss due to middle ear pathology from
previous trauma. Options were discussed, and Kermoade decided to get a hearing aid. (Tr.
299.) A clinical audiologist fitted Kermoade for a hearing aid in her left ear on January 3,
2006. (Tr. 293-94.)
On January 18, 2006, Kermoade reported that she had pain in her stomach,
heartburn, indigestion, swelling, and a “pins and needles” feeling in her hands and fingers.
(Tr. 309.) Her provider assessed her with, among other things, epigastric pain and edema
in her hands and feet. (Tr. 310.) On January 30, 2006, Kermoade reported that her
stomach had improved. (Tr. 307.)
On May 26, 2006, Kermoade reported that the first three fingers on both hands were
numb. (Tr. 416.) She was diagnosed with bilateral carpal tunnel syndrome (Tr. 417.)
On July 6, 2006, Anil Agarwal, M.D., conducted a consultative evaluation. (Tr. 320.)
Dr. Agarwal noted that Kermoade was diagnosed with hepatitis C in 1997 and that she was
asymptomatic and on a “benign course.” (Tr. 320-21.) Kermoade told him that she visited
the emergency room “usually every other week” for asthma treatment and claimed that if
she were working, she would have to miss work “for at least 2 months out of 6 months.” (Tr.
321.) Despite Kermoade’s statement that she visited the emergency room every other
week for her asthma, she continued to smoke. She also stated that she had arthritis in her
hands and feet, although Dr. Agarwal noted that she had never had any x-rays, physical
therapy, or cortisone injections, and her tests for rheumatoid arthritis and other immune
diseases were negative. (Tr. 321.) She claimed that she had twenty-five percent hearing
loss in her left ear but could understand and communicate with normal conversation.
Apparently she did not tell Dr. Agarwal she had a hearing aid. (Tr. 321.) Dr. Agarwal also
noted that Kermoade was diagnosed with carpal tunnel syndrome and recorded her
complaints of numbness, tingling, and pain.
He noted that she had not had nerve
conduction studies and her only treatment was wrist braces as needed. He also recorded
a complaint of tennis elbow. He noted that she had not had x-rays or other images and that
she had normal range of motion. (Tr. 322.) In summary, Dr. Agarwal’s examination of
Kermoade was unremarkable. (Tr. 324-30.) She had some tenderness in her lumbar
spine. (Tr. 326.) She also had sensations in her medial nerve on both hands, along with
positive Phalen’s signs but negative Tinel’s signs on both hands. (Tr. 329.) An x-ray of her
right elbow showed no abnormalities. (Tr. 330.) Dr. Agarwal diagnosed her with hepatitis
C (benign course), moderate asthma with frequent exacerbation for two of the past six
months (causing her to miss a “great deal of work”), a history of arthritis of the hands and
feet, a history of partial hearing loss of twenty-five percent in the left ear,2 and bilateral
carpal tunnel syndrome. (Tr. 330.) Dr. Agarwal opined that she could sit for four hours and
stand for five hours in an eight-hour workday. Kermoade could lift fifteen and carry twenty
pounds. Dr. Agarwal stated that handling objects could “cause problems when her arthritis”
flared. (Tr. 331.) He also noted that Kermoade could hear normally during conversation
and speak without any problems. (Tr. 331.)
On August 30, 2006, Gerald Spethman, M.D., a state agency physician, completed
a residual functional capacity (“RFC”) questionnaire.
He stated that
Kermoade could occasionally lift twenty pounds; frequently lift ten pounds; stand, walk, or
sit (with normal breaks) for six hours in an eight-hour workday; push or pull. (Tr. 350.) He
opined that Kermoade could occasionally climb, balance, stoop, kneel, crouch, and crawl.
(Tr. 351.) Although Dr. Spethman noted that Dr. Agarwal diagnosed bilateral carpal tunnel
syndrome; Dr. Spethman noted that no EMG studies had been done. He noted that
Kermoade’s only treatment was wrist braces to be worn only when she had symptoms and
that she did not wear them to her consultative examination. He noted a positive Phalen’s
test but a negative Tinel’s test. An examination of Kermoade’s upper extremities was
“essentially normal.” (Tr. 350.) Dr. Spethman noted that, despite Kermoade’s complaints
of arthritis, laboratory studies were normal, Kermoade had no evidence of arthritis in any
joints, and the consultative medical examination revealed no evidence of arthritis. (Tr. 351,
Again, the fact that Kermoade had a hearing aid was not discussed.
Dr. Spethman explained the inconsistencies between his findings and those of Dr.
In his [consultative examination] Dr. Agarwal makes the following statements
as far as the work status of this claimant: 1. He says she can sit for 4 hours
out of 8. I disagree with this because the claimant had a normal back exam
and normal strength and sensation in her extremities and has had no ER or
hospitalization visits for back problems. She also states that she can watch
TV for 4 hours at a time. I think this indicates that she could sit for at least 6
hours with normal breaks. The second work status situation concerns Dr.
Agarwal’s stating that the claimant can stand for 5 hours out of 8 with normal
[breaks]. . . . [T]he claimant says she can stand only 1 hour yet the work
status here by Dr. Agarwal states that she can stand 5 hours. However with
a normal back exam and no unusual x-rays and no ER or hospitalizations or
doctor’s visits for specific back problems, I feel that she ought to be able to
stand 6 hours out of 8 with normal breaks. Dr. Agarwal states that the
claimant could lift 15 lbs. and carry 20 lbs. and I think this seems reasonable
according to the MER. He also states that handling objects could cause
problems when her arthritis flares up. The problem is she’s had no arthritic
flare-ups according to the MER. All of her labs are normal and there are no
x-rays to indicate any particular problems in any joint from an arthritic
standpoint or that she’s ever had a flare-up of her arthritis.
Dr. Spethman noted that Dr. Agarwal said Kermoade would have difficulty handling
objects when she experienced arthritis flareups. Dr. Spethman repeated, however, that all
laboratory studies were normal, no x-rays revealed any arthritis, and the consultative
examination showed normal sensation in the upper extremeties. (Tr. 352.)
Regarding speech and hearing, Dr. Spethman noted that while Kermoade’s speech
discrimination abilities were 100% in both ears, she opted for a hearing aid for her left ear
to address moderate conductive hearing loss. (Tr. 353.) Kermoade had excellent word
discrimination in both ears. (Tr. 363.) She said she could understand and communicate
during normal conversation. (Tr. 353.)
Dr. Spethman also noted Kermoade’s long history of smoking and her statement that
she was diagnosed with asthma ten years earlier. (Tr. 353.) In finding that the medical
records did not support this allegation, Dr. Spethman. wrote:
Claimant’s diagnosis of asthma was supposedly made about ten years ago
with pulmonary function tests. However, these are not in the chart and there
are no other pulmonary function tests in the chart. Her chest x-ray in
November of 2005 showed no acute changes. She has had visits to the docs
in the past five years from 2001-2006 but usually they have been for colds
and coughs related to URI’s.
There have been no ER visits or
hospitalizations in that period of time for her asthma. In the [consultative
examination] the claimant states she had missed 2 out of the last 6 months
of work and that she was seen every other week for her asthma symptoms
but there is no MER to support this. She still has continued to smoke but
does not meet the listing of 3.03.
Dr. Spethman noted Kermoade’s 1997 diagnosis of Hepatitis C and the showing
during the consultative examination that the disease had always remained dormant.
Kermoade had been asymptomatic, her liver function tests were normal with one minor
elevation, and her C-reactive antibody was normal.
Dr. Spethman concluded that
Kermoade’s Hepatitis C was nonsevere. (Tr. 363.)
Finally, Dr. Spethman found Kermoade only partially credible. His assessment was
based on the discrepancy between Kermoade’s statement that she could not work or attend
her daughter’s school activities, and her ability to work for six months as a CNA before she
was examined by Dr. Agarwal, during which time she had to provide patient care and lift
heavy patients. (Tr. 364.)
Michael Frumkin, M.D., completed an arthritis RFC questionnaire on December 26,
2006. (Tr. 366-72.) He recorded her diagnosis as polyarthralgias, calling her prognosis
“good” and noting that she had bilateral joint soreness, stiffness, and edema. (Tr. 366.) He
checked boxes indicating that she had reduced range of motion in her hands, reduced grip
strength, sensory and reflex changes, redness, swelling, muscle weakness, and impaired
sleep. (Tr. 366-67.) Dr. Frumkin indicated that Kermoade’s pain was frequently severe
enough to interfere with her attention and concentration but opined that she was capable
of high stress work. (Tr. 367.) He opined that Kermoade could walk only two blocks without
resting or experiencing severe pain. (Tr. 368.) He indicated that Kermoade could sit for
more than two hours (the maximum available on the form) and stand for forty-five minutes
at a time before needing to change positions. (Tr. 368.) Dr. Frumkin also opined that
Kermoade could stand or walk for less than two hours in an eight-hour workday and could
sit for “about” two hours in an eight-hour workday. He wrote that Kermoade needed to
change position frequently and had to walk for ten minutes at a time, eight times per day.
(Tr. 369.) Dr. Frumkin indicated that Kermoade had to take unscheduled breaks, sitting
down for fifteen to twenty minutes every hour during the workday. (Tr. 369-70.) Dr. Frumkin
checked the boxes indicating that Kermoade could frequently lift less than ten pounds and
occasionally lift twenty pounds.
He indicated that Kermoade could frequently twist,
occasionally stoop, crouch, and climb stairs, and rarely climb ladders. (Tr. 370.) He also
indicated that Kermoade could: spend only two percent of an eight-hour workday grasping,
turning, or twisting objects bilaterally; never perform fine manipulations; and could spend
thirty percent of her workday reaching. (Tr. 371.) Finally, he opined that Kermoade would
likely be absent from work more than four days per month. (Tr. 371.)
On January 9, 2007, a nurse practitioner wrote that Kermoade’s right hand and
forearm were “quite edematous,” and her left hand and arm were also somewhat swollen.
(Tr. 418.) Kermoade stated that there was “no way” that she could work with her asthma
and her need to pick her daughter up from school. (Tr. 418.)
On January 18, 2007, Jay Kenik, M.D., a rheumatologist, wrote that Kermoade’s
arthralgias had an unclear etiology. He noted that Kermoade’s swelling episode in her right
forearm was “self-limited,” and his examination showed some fullness in her hands but
otherwise was unremarkable. Kermoade was able to make a full fist. Dr. Kenik assessed
Kermoade with arthralgias with an unclear etiology. (Tr. 422.)
On February 13, 2007, Kermoade stated that she was “very upset” because “the
state [was] wanting her to get a job and [was] requiring 120 hours per month in communit[y]
service projects.” (Tr. 419.) Kermoade was “quite adamant” that she needed to stay at
home in case her daughter had problems at school and needed to be picked up. (Tr. 419.)
Her provider also stated that Kermoade was “quite adamant” that she could not be outside
in the wind or cold because of her asthma but stated she no longer had an inhaler or
breathing treatment machine. (Tr. 419.)
Dr. Kenik noted on April 20, 2007, that Kermoade’s arthralgias appeared to be more
typical of fibromyalgia. (Tr. 421.) He wrote that Kermoade continued to have generalized
arthralgias with some low back stiffness and discomfort, as well as peripheral numbness
and tingling. (Tr. 421.) He diagnosed Kermoade with fibromyalgia or arthralgias. (Tr. 421.)
Dr. Kenik encouraged Kermoade to start regular exercise, and he prescribed Cymbalta. (Tr.
421.) On May 18, 2007, Dr. Kenik wrote that Kermoade felt the Cymbalta was “helping.”
(Tr. 420.) However, she complained of pain and some triggering in her right thumb. An
examination revealed some nodularity of the flexor tendon on her right thumb, with obvious
triggering. Dr. Kenik noted that her tender points remained “evident” but were “less in
extent.” (Tr. 420.) He listed his assessment as fibromyalgia and stenosing tendinitis, and
he injected Kermoade’s right thumb.
On October 2, 2007, Kermoade asked Dr. Frumkin to fill out a Physician’s
Confidential Report to permit her “[t]o obtain an exemption from [E]mployment [F]irst
activities due to physical condition.” (Tr. 400, 402.) Dr. Frumkin noted her diagnoses of
bilateral carpal tunnel syndrome, bilateral arthritis, asthma, and hepatitis C. He recorded
her prognosis, including rehabilitation potential, as “good.” (Tr. 400.) He also noted that she
had decreased use of her hands and decreased manual dexterity. (Tr. 400.) Dr. Frumkin
wrote that Kermoade was unable to lift, with decreased manual dexterity, and he restricted
her from exposure to cold. (Tr. 401.)
On November 16, 2007, Kermoade broke her left distal radius in a roller skating
accident. (Tr. 397.) Kermoade received a cast and, on November 19, 2007, Dr. Frumkin
conducted a preoperative history and physical examination. (Tr. 426.) A chest x-ray was
normal, revealing only borderline heart size. (Tr. 399, 427.) An electrocardiograph revealed
sinus bradycardia but was otherwise normal. (Tr. 427.) The wrist fracture was successfully
repaired through an open reduction and internal fixation. (Tr. 428.) An x-ray revealed a
status post operative fixation of a fracture to her distal left radius. (Tr. 423.)
On January 11, 2008, Kermoade complained of swelling in her right wrist and hand.
The examiner diagnosed swelling in Kermoade’s right wrist and hand,
fibromyalgia, and acute chronic obstructive pulmonary disorder (COPD). (Tr. 393.)
On March 17, 2008, Kermoade reported that she had more pain and less sensation
in her left hand since her November surgery. (Tr. 388.) She stated that it ached, throbbed,
and burned, with the aches going all the way into her shoulder at night. (Tr. 388.) She was
diagnosed with left wrist pain and osteoarthritis. (Tr. 389.)
On July 2, 2008, Dr. Frumkin again completed a Physician’s Confidential Report for
the state employment agency. (Tr. 384-85.) He indicated Kermoade’s diagnoses as a
fracture in her left wrist, bilateral carpal tunnel syndrome, bilateral arthritis, asthma, and
hepatitis C. (Tr. 384.) He listed her prognosis for rehabilitation potential as “fair: to be
seen.” (Tr. 384.) Dr. Frumkin indicated that Kermoade’s symptoms included nerve damage
to her medial nerve, leading to increased pain and numbness in her left hand and wrist. (Tr.
384.) He indicated that she had no limitations in her activities of daily living, but in terms
of work and physical activity she could not lift or hold onto objects. (Tr. 385.) Dr. Frumkin
opined that Kermoade should be exempted from state employment agency activities. (Tr.
On July 31, 2008, Kermoade complained of recurrent pain and weakness in her left
wrist and arm. (Tr. 382.) A chest x-ray taken that day was unremarkable; the report noted
Kermoade was still smoking. (Tr. 383.) Kermoade was diagnosed with carpal tunnel
syndrome and it was noted that a left carpal tunnel release was scheduled. (Tr. 382.)
On September 19, 2008, Stephen Brown, M.D., Kermoade’s orthopedic surgeon,
examined her, noting that she was six weeks status post left hand carpal tunnel release and
one year status post open reduction and internal fixation for the fracture in her left wrist.
(Tr. 441.) Dr. Brown wrote that she was “doing very well” and that she denied any
problems, stating that she was “happy with her hand and wrist.” (Tr. 441.) Dr. Brown noted
that she had good sensation in her fingers, with no numbness or tingling, and good grip
strength and range of motion. (Tr. 441.) He concluded that she was doing “very well” on
the left side. (Tr. 441.) Dr. Brown also noted that she had “some mild median nerve
compression” in her right hand. He advised her to track it over the next four to six months,
indicating that he would consider carpal tunnel release on the right hand if she desired. (Tr.
441.) Otherwise, Dr. Brown gave her a full release back to all of her regular activities, with
no restrictions. (Tr. 441.)
On several occasions in 2008 and 2009, Kermoade complained of coughing and
difficulty breathing. (Tr. 378-81, 432-35.) She was assessed with, among other things,
COPD, asthma, and acute or chronic bronchitis. (Tr. 379, 381, 433, 435.)
On March 20, 2009, Kermoade complained of sharp chest pains. (Tr. 436.) She was
assessed with, among other things, costochondritis in her ribs, bilateral carpal tunnel
syndrome, asthma, and chronic pain. (Tr. 437.)
On September 15, 2009, Dr. Frumkin completed another Physician’s Confidential
Report. (Tr. 444.) He listed Kermoade’s diagnoses as bilateral carpal tunnel syndrome,
bilateral osteoarthritis in her hands, asthma, and hepatitis C. (Tr. 444.) He listed her
prognosis and rehabilitation potential as “good” and recommended physical therapy and
further orthopedic or neurosurgery. (Tr. 444-45.) He indicated that she could not lift using
her hands and had decreased fine dexterity, as well as cold-induced bronchiospasms and
exercise-induced asthma. (Tr. 445.) In a Supplemental Physician’s Report completed on
the same day, Dr. Frumkin indicated that Kermoade could not participate in any work- or
job-readiness activities at all and opined that this was “indefinite.” (Tr. 446.) He wrote that
she was unable to lift objects with her hands or exert fine dexterity. (Tr. 446.) He also
wrote that she had severe problems with breathing due to COPD and asthma. (Tr. 446.)
At the initial hearing, which was continued to allow Kermoade’s counsel to obtain
additional medical records from her orthopedic specialist, Kermoade stated the main
reasons she sought disability were her arthritis and carpal tunnel in her right hand, which
had not been treated with surgery. (Tr. 33, 36, 44.) She is left-handed. (Tr. 32.) She was
seeing Dr. Michael Frumkin, a general practitioner, for her complaint. Dr. Frumkin had not
referred her to a rheumatologist. (Tr. 33.)
At the second hearing, Kermoade amended her onset date to January 18, 2006. (Tr.
45.) Also, Kermoade’s attorney also mentioned hearing loss and Hepatitis C as bases for
Kermoade’s disability. (Tr. 45.)
Kermoade testified that at the time of the second hearing she was fifty-three years
old. She earned a General Equivalency Diploma, and her status as a certified nursing
assistant had lapsed. (Tr. 46.) Kermoade was single, and she had five children. One child,
age seventeen at the time of the hearing, lived with her. The child was on Social Security
disability for ADHD and having a mild mental handicap. (Tr. 47.) Kermoade also received
child support for this child. Kermoade’s parents had guardianship for the other four children
from 1990 or 1991 until they achieved the age of majority, because Kermoade was an
alcoholic. (Tr. 47-48.) Kermoade worked to help support all of her children. (Tr. 48-49.)
She worked as a CNA at Bergan Mercy Hospital from 1995 through 1999. She
contracted Hepatitis C at work. Kermoade had the antibodies, but she was asymptomatic.
(Tr. 49-50.) Kermoade stated she left her job under a mutual agreement because she was
not getting along with her coworkers. (Tr. 50-51.) Kermoade then was a cashier at K-Mart
until she left because of her asthma. She also worked temporarily during a Christmas
season at Target. (Tr. 51.) In 2000, she unsuccessfully applied for disability because of
her asthma. (Tr. 52.) Kermoade testified that at the time of the hearing her asthma was
“somewhat under control” as she was taking breathing treatments and medications for her
condition. Kermoade was eligible for Medicaid at the time of the hearing, because of her
daughter’s status. (Tr. 52.)
Returning to her work history, Kermoade described her nursing jobs between 2001
and 2004 at Beverly Health, Saint Joe’s Villa, Right at Home, and Maxim Healthcare. (Tr.
52-53.) Kermoade testified that she stopped working in 2004 because of her arthritis and
asthma. She had not worked since then and had not sought other employment because
of her arthritis in her hands. (Tr. 54.) She stated she could not lift anything and she
dropped things. She said she could not carry a cup of coffee. (Tr. 54.) She had friends
come to help clean her house. (Tr. 55.) At the time of the hearing, a friend was staying with
Kermoade to help with housework and cooking. (Tr. 63-64.) Kermoade remembered being
evaluated by Dr. Jay Kenik, a rheumatologist, in 2007. He told her to continue exercising
and referred her to her general practitioner. (Tr. 55.)
Kermoade had a driver’s license, but she did not have a car and had not driven in
two or three years. She relied on buses, cabs, or walking. She described her daily activities
on good days as including a little housework and laundry. (Tr. 56.) She said on bad days
she did not do anything, and on many days she did not even get out of bed. (Tr. 56, 63-64.)
She testified that her asthma kept her from going outside on humid or cold days. (Tr. 56.)
She continued to smoke four or five cigarettes daily, and she testified that she could not quit
despite being urged to do so by her physician. (Tr. 57.) Kermoade’s current sources of
income were her daughter’s disability payments, ADC, food stamps, child support,
Medicaid, and section eight housing. (Tr. 57-58.)
At the continued hearing on September 24, 2009, Kermoade stated that her asthma
was “somewhat under control” with medication (Tr. 52.) Kermoade described the carpal
tunnel syndrome surgery done on her dominant left hand, treated by Dr. Stephen Brown.
(Tr. 59, 65.) She had not had treatment for carpal tunnel syndrome in her right hand. (Tr.
59.) Kermoade also recalled surgery to put a pin in her broken wrist as a result of a
rollerblading accident. (Tr. 59-60.) During Kermoade’s testimony, the ALJ noted that in
September 2008, Dr. Brown gave Kermoade a full release back to normal activities without
restrictions. (Tr. 60.) Kermoade testified that she was prescribed up to three Hydrocodone
with Tylenol pills daily for pain, and took “a couple.” (Tr. 61-62.) She also took Clonazepam
for leg cramps at night, and Lyrica and another arthritis medication. (Tr. 62.) She also took
Tramadol for a hiatal hernia and stomach reflux. (Tr. 63.)
Vocational Expert’s Testimony
Gail Leonhardt,3 a vocational expert, testified in response to a hypothetical question
from the ALJ in which he outlined Kermoade’s age, education, and work experience. (Tr.
71-76.) The ALJ’s hypothetical individual occasionally could lift or carry twenty pounds and
frequently lift or carry ten pounds (Tr. 72.) She could stand, sit, or walk six hours in an
eight-hour workday. (Tr. 72.) The individual could occasionally climb, balance, stoop, knee,
crouch, and crawl. (Tr. 72.) She could use her hands for frequent, but not constant,
handling, fingering, and feeling. (Tr. 72.) The individual: could not work in an excessively
Mr. Leonhardt’s curriculum vitae is in the record. (Tr. 142-43.)
noisy workplace; had to avoid concentrated fumes, odors, dust, gases, humidity, and
extreme cold or heat; and had to avoid hazards such as ladders or dangerous equipment.
(Tr. 72.) The vocational expert testified that the hypothetical individual could not perform
her past work, but she could perform other jobs existing in significant numbers in the
national and local economies such as a line production assembler, cashier, and hand
packager. Mr. Leonhardt explained that hand packaging work would be limited to the light,
as opposed to medium, range. (Tr. 73.)
THE ALJ’S DECISION
After following the sequential evaluation process set out in 20 C.F.R. §§ 404.1520
and 416.920,4 the ALJ concluded that Kermoade was not disabled in either the disability or
the SSI context. (Tr. 24.) Specifically, at step one the ALJ found that Kermoade had not
performed substantial gainful work activity since January 18, 2006, the amended onset
date. At step two, the ALJ found the following medically determinable severe impairments:
fibromyalgia/arthralgias; hepatitis C; hearing loss, with a left hearing aid; asthma; and
“history of mild carpal tunnel syndrome affecting both hands, status post left carpal tunnel
release in approximately August 2008 and status post open reduction and internal fixation
of a left wrist fracture in approximately September 2007.” (Tr. 17.) At step three, the ALJ
found that Kermoade’s medically determinable impairments, either singly or collectively, did
not meet Appendix 1 to Subpart P of the Social Security Administration's Regulations No.
4, known as the “listings.” (Tr. 18.) The ALJ determined that Kermoade had the residual
Section 404.1520 relates to disability benefits, and identical § 416.920 relates to
SSI benefits. For simplicity, in making further references to the social security
regulations the Court will only refer to disability regulations.
functional capacity to perform light work. (Tr. 18-23.) At step four, the ALJ determined that,
Kermoade did not possess the RFC to perform her past relevant work. (Tr. 23.) At step
five, the ALJ concluded that Kermoade could perform other light jobs that exist in significant
numbers in the local and national economies: production assembler; cashier II; and hand
packager. In summary, the ALJ found that Kermoade was not disabled for purposes of
disability or SSI. (Tr. 23-24.) The ALJ found that Kermoade met the SSA’s insured status
requirements through September 30, 2009. (Tr. 17.)
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits, a district court does not reweigh
evidence or the credibility of witnesses or revisit issues de novo. Rather, the district court's
role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the
record as a whole supports the Commissioner's decision and, if so, to affirming that
decision. Howe v. Astrue, 499 F.3d 835, 839 (8th Cir. 2007).
“‘Substantial evidence is less than a preponderance, but enough that a reasonable
mind might accept it as adequate to support a decision.’” Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). The
Court must consider evidence that both detracts from, as well as supports, the
Commissioner's decision. Carlson v. Astrue, 604 F.3d 589, 592 (8th Cir. 2010). As long as
substantial evidence supports the Commissioner's decision, that decision may not be
reversed merely because substantial evidence would also support a different conclusion or
because a district court would decide the case differently. Fredrickson v. Barnhart, 359
F.3d 972, 976 (8th Cir. 2004).
Weight Given to Opinion of Dr. Spethman, a Nontreating, Nonexamining
Kermoade argues that the ALJ did not discuss the weight given to Dr. Spethman’s
opinion, thereby violating 20 C.F.R. § 404.1527(f)(2)(ii) and Social Security Ruling 96-2p.
Kermoade argues that the ALJ is required to discuss the weight given to a medical opinion,
in particular the opinion of a nontreating physician who did not examine her.
The applicable regulation provides:
When an administrative law judge considers findings of a State agency
medical or psychological consultant or other program physician, psychologist,
or other medical specialist, the administrative law judge will evaluate the
findings using the relevant factors in paragraphs (a) through (e) of this
section, such as the consultant's medical specialty and expertise in our rules,
the supporting evidence in the case record, supporting explanations the
medical or psychological consultant provides, and any other factors relevant
to the weighing of the opinions. Unless a treating source's opinion is given
controlling weight, the administrative law judge must explain in the decision
the weight given to the opinions of a State agency medical or psychological
consultant or other program physician, psychologist, or other medical
specialist, as the administrative law judge must do for any opinions from
treating sources, nontreating sources, and other nonexamining sources who
do not work for us.
20 C.F.R. § 404.1527(f)(2)(ii).
Kermoade argues this case is similar to Willcockson v. Astrue, 540 F.3d 878 (8th Cir.
The Court disagrees.
In Willcockson, the Eighth Circuit Court of Appeals
determined that an explanation for the reliance on a nontreating and nonexamining
physician’s opinion by the ALJ was necessary because additional relevant medical evidence
was obtained during the seventeen months that passed between the physician’s opinion
and the claimant’s administrative hearing. That evidence was deemed relevant to the
reviewing physician’s opinion. Id. at 880. In Kermoade’s case, however, all of the pertinent
medical evidence that post-dated Dr. Spethman’s opinion related to Kermoade’s broken
wrist and carpal tunnel treatment and surgery. On August 30, 2006, Kermoade’s orthopedic
surgeon, Dr. Brown, released Kermoade without restrictions. Medical records do not reflect
that she sought further treatment or surgery for her right hand. Any other medical evidence
that followed the release of Dr. Spethman’s opinion related to minor complaints such as
coughing. Therefore, the Court declines to apply the logic of the Willcockson decision in
this case because the medical evidence obtained after the date Dr. Spethman rendered his
opinion fully supported his opinion and was otherwise irrelevant to the opinion.
Certainly, the ALJ’s opinion could have included a specific section devoted to the
weight accorded to Dr. Spethman’s opinion. However, a reading of the ALJ’s opinion, with
an in-depth discussion of Dr. Spethman’s findings, clearly shows that the ALJ very carefully
considered Dr. Spethman’s opinion and afforded it great weight. Moreover, as shown
above, a thorough reading of Dr. Spethman’s letter that accompanied his completed
checklist thoroughly explained the underpinnings of his opinion in addition to why it differed
from Dr. Agarwal’s opinion and other medical evidence. Insofar as the ALJ’s absence of
a discussion specifically including a reference to the weight given to Dr. Spethman’s opinion
may be considered a deficiency, the Court notes the Eighth Circuit Court of Appeals’
position that a deficiency in opinion writing does not require a reversal or remand where the
result is not affected. Id.; Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004).
Because Dr. Spethman’s opinion thoroughly summarizes the medical evidence of record,
and is consistent with Dr. Brown’s later release to full activity, any deficiency in failing
specifically to address the “weight” given to his opinion does not affect the result in
Kermoade’s case. Therefore, this argument does not support reversal or remand.
Status of a Nontreating, Nonexamining Physician
“[T]he opinions of nonexamining sources are generally, but not always, given less
weight than those of examining sources.” Willcockson, 540 F.3d at 880 (citing 20 C.F.R.
§ 404.1527(d)(1)). An ALJ may consider an independent medical opinion as a factor in
determining the nature and severity of a claimant's impairment. Casey v. Astrue, 503 F.3d
687, 697 (8th Cir. 2007). “When one-time consultants dispute a treating physician's opinion,
the ALJ must resolve the conflict between those opinions.” Cantrell v. Apfel, 231 F.3d 1104,
1107 (8th Cir.2000). Generally, a nontreating physician’s opinion does not constitute
substantial evidence on the record as a whole, particularly where that opinion is inconsistent
with a treating physician’s opinion. However, the Eighth Circuit “has recognized two
exceptions to this general rule” and has “upheld an ALJ's decision to discount or even
disregard the opinion of a treating physician (1) where other medical assessments are
supported by better or more thorough medical evidence, or (2) where a treating physician
renders inconsistent opinions that undermine the credibility of such opinions.” Wagner v.
Astrue, 499 F.3d 842, 849 (8th Cir. 2007). The ALJ has a duty to examine the record as a
whole, and “[i]t is well established that an ALJ may grant less weight to a treating physician's
opinion when that opinion conflicts with other substantial medical evidence contained within
the record.” Prosch v. Apfel, 201 F.3d 1010, 1013–14 (8th Cir.2000). In many instances
an ALJ was allowed to credit other medical evaluations over that of the treating physician
when the other assessments are supported by better or more thorough medical evidence.
See, e.g., id. at 1014; Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (stating that a
treating physician’s opinion that is inconsistent with the medical evidence as a whole may
be given less weight, as the ALJ’s duty is to resolve conflicts in the evidence); Hacker v.
Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (stating that the Eighth Circuit has allowed the
substitution of “opinions of non-treating physicians where a treating physician ‘renders
inconsistent opinions that undermine the credibility of such opinions’”) (quoting Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)).
In this case, for the reasons best explained by Dr. Spethman in his letter that
accompanied his RFC evaluation, the opinion of Dr. Frumkin, Kermoade’s treating
physician, is inconsistent and not supported by the medical evidence in the record as a
Most important are the following factors: Kermoade’s Hepatitis C has been
asymptomatic; the lack of evidence of asthma, combined with Kermoade’s long history of
smoking; the lack of specific medical evidence of arthritis; and Dr. Brown’s release of
Kermoade to normal activities without restrictions following her carpal tunnel surgery.5
Kermoade complained of carpal tunnel syndrome in her right hand, yet she did not return
to Dr. Brown for surgery as he suggested if she were to continue to have pain in that hand.
Dr. Spethman’s opinion was thoroughly described and discussed by the ALJ. The absence
of specific words of comparison between his opinion and others does not itself require
reversal or remand.
The record also shows Kermoade based her claim of disability on depression,
stomach problems, restless leg syndrome, and a hernia. However, at the hearing
Kermoade, through counsel, acknowledged that she was not relaying on depression as
a basis for her claim. The medical records include little, if any, evidence of stomach
problems, restless leg syndrome, or a hernia, and as of the time of her administrative
hearing these matters were not included in Kermoade’s list of claimed impairments.
Weight Given to Opinion of Dr. Anil Agarwal
Kermoade raises a similar argument with respect to a consultative examiner, Dr.
Agarwal, arguing the ALJ did not explain the weight she gave to his opinion. Kermoade
believes more credence should have been given to Dr. Agarwal’s opinion because he
examined Kermoade once on a consultative basis and because he is an orthopedic
Again, the ALJ’s opinion could have included a specific explanation of the weight
given to Dr. Agarwal’s opinion. However, she thoroughly discussed his opinion in some
detail in conjunction with her discussion of Dr. Spethman’s opinion. As in the case of the
ALJ’s handling of Dr. Spethman’s opinion, Dr. Agarwal’s opinion was based on a 2006
consultative examination and primarily related to Kermoade’s complaints of carpal tunnel
syndrome. In 2008, Dr. Brown, Kermoade’s orthopedic surgeon who performed her carpal
tunnel surgery as well as surgery for her broken wrist, released her without any restrictions.
Dr. Brown’s records were not available to Dr. Agarwal in 2006, and for this reason and
because Dr. Agarwal’s opinion was inconsistent with other medical evidence, it is of limited
Residual Functional Capacity
Kermoade argues that the ALJ’s RFC findings regarding her ability to do light work
and, specifically, her abilities to (1) stand for six hours in an eight-hour workday and (2) to
frequently finger, handle, and feel, are not supported by substantial evidence and were
based solely on Dr. Spethman’s opinion. She argues that Dr. Brown’s unrestricted release
to normal activities was not substantial evidence as it lacked other support in the record.
RFC is defined as “the most [a claimant] can still do despite” his or her “physical or
mental limitations.” Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004) (quoting (20
C.F.R. § 404.1545(a)).
The ALJ bears the primary responsibility for determining a
claimant's RFC, a medical question that must be supported by “some medical evidence,”
as well as “observations of treating physicians and others, and claimant's own description
of her limitations.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir.2010); Jones v. Astrue,
619 F.3d 963, 971 (8th Cir. 2010). A nontreating physician’s opinion may constitute
substantial evidence in support of an RFC determination. Smallwood v. Chater, 65 F.3d 87,
89 (8th Cir. 1995). The burden of proving RFC lies with the claimant. Martise v. Astrue, 641
F.3d 909, 923 (8th Cir. 2011).
In this case, the ALJ performed an RFC analysis and concluded that Kermoade can:
occasionally lift or carry 20 pounds and frequently lift or carry ten pounds.
She can stand, sit, or walk for six hours in an eight-hour day; occasionally
perform postural activities, which include climbing, balancing, stooping,
kneeling, crouching, and crawling; and use her hands for frequent but not
constant handling, fingering, and feeling. She has no restrictions of hearing,
but should avoid work in an excessively noisy work area. She has 100%
speech discrimination ability and was able to hear the proceedings at her
hearing. Because of her asthma, she should avoid concentrated fumes,
odors, dust, gases, humidity, extreme heat, and extreme cold. She should
avoid hazards, including ladders and dangerous equipment.
Kermoade’s argument that, in determining her RFC, the ALJ was not entitled to rely
on Dr. Spethman’s opinion, because he was not a treating physician, is misplaced. As
stated above, the in determining RFC an ALJ is entitled to rely on all evidence of record,
including the opinions of nontreating physicians. For the reasons discussed earlier in this
opinion, Dr. Spethman’s opinion was properly relied upon as substantial evidence. His
opinion was soundly supported by that of Kermoade’s orthopedic surgeon, Dr. Brown.
For the reasons discussed, the Court concludes that the Commissioner's decision
was supported by substantial evidence on the record as a whole and is affirmed.
IT IS ORDERED:
The Commissioner’s decision is affirmed;
The appeal is denied; and
Judgment in favor of the Defendant will be entered in a separate document.
DATED this 11h of July, 2011.
BY THE COURT:
s/Laurie Smith Camp
United States District Judge
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