Ebert v. Colvin
MEMORANDUM AND ORDER that the Commissioner's decision is affirmed; This case is dismissed; The parties shall bear their own costs; and A separate judgment will be entered. Ordered by Judge John M. Gerrard. (SLP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTOPHER NICHOLAS EBERT,
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
This matter is before the Court on the denial, initially and upon
reconsideration, of the plaintiff Christopher Nicholas Ebert's application for
supplemental social security income benefits under Title XVI of the Act, 42 §
1381, et seq. The Court has considered the parties' filings and the
administrative record. For the reasons discussed below, the Commissioner's
decision is affirmed.
I. PROCEDURAL BACKGROUND
Ebert applied for supplemental social security income benefits on
January 14, 2011. T100.1 His claim was denied initially on May 18, 2011,
T104–07, and upon reconsideration on August 12, 2011, T116–19. Ebert
appealed and requested a hearing from an administrative law judge (ALJ).
T125. The ALJ held three hearings on the matter. T31, 41, 66. The first
hearing took place on November 27, 2012. T31. It was continued to provide
the medical expert with an additional exhibit. T37. The second hearing took
place on December 4, 2012. T41. That hearing was continued to obtain a
statement from Ebert's treating cardiologist as to whether he was a
candidate for heart transplant. T65. The third hearing took place on March
20, 2013. T66. The medical expert from the prior two hearings was
unavailable, so a different medical expert testified at the third hearing. T68.
In a decision dated April 9, 2013, the ALJ found that Ebert was not disabled
as defined under 42 U.S.C. § 1382c, and therefore not entitled to benefits.
All citations to the administrative record (filings 11-1 through 11-7 and 12-1 through 12-4)
are given as "T [Transcript]" followed by the page number.
1. Sequential Analysis
Disability, for purposes of the Social Security Act, is defined as the
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C. § 1382c(3)(A).
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that he has not engaged in
substantial gainful activity since his alleged disability onset date. Cuthrell v.
Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has engaged in
substantial gainful activity, he will be found not to be disabled; otherwise, at
step two, he has the burden to prove he has a medically determinable
physical or mental impairment or combination of impairments that
significantly limits his physical or mental ability to perform basic work
At step three, if the claimant shows that his impairment meets or
equals a presumptively disabling impairment listed in the regulations, he is
automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four. But first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what he can do despite
the limitations caused by any mental or physical impairments. Toland v.
Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the
burden to prove he lacks the RFC to perform his past relevant work. Cuthrell,
702 F.3d at 1116. If the claimant can still do his past relevant work, he will
be found not to be disabled; otherwise, at step five, the burden shifts to the
Commissioner to prove, considering the claimant's RFC, age, education, and
work experience, that there are other jobs in the national economy the
claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).
2. The ALJ's Findings
Ebert alleges disability primarily as a result of cardiomyopathy. T378.
He initially alleged an onset date of November 1, 2010, but later amended it
to January 14, 2011. T362, 44. At that time, Ebert was 28. See T362.
At step one, the ALJ found that Ebert had not engaged in substantial
gainful activity following his alleged onset date. T16. Next, at step two, the
ALJ found that Ebert's dilated cardiomyopathy and congestive heart failure
were severe impairments. T16. At step three, the ALJ found that Ebert had
no impairment that met or medically equaled a listed impairment. T17. The
ALJ then determined that Ebert had the RFC to perform sedentary work as
defined in 20 C.F.R. § 416.967(a), i.e., lifting and carrying 10 pounds
occasionally and less than 10 pounds frequently, sitting 1 hour at a time for
a total of 6 hours in an 8-hour workday followed by a break of 2 to 4 minutes
standing, standing 1 hour at a time for a total of 2 hours in an 8-hour
workday, and walking 2 hours at a time for a total of 4 hours in an 8-hour
workday. T17. Further, the ALJ found that the claimant could less than
occasionally balance, stoop, kneel, crouch, and crawl; occasionally climb stairs
and ramps, work in extreme cold and heat, and work with exposure to dust,
odors, fumes, and pulmonary irritants; he could never climb ladders, ropes,
and scaffolds, work at unprotected heights, work around moving mechanical
parts, or drive commercially; and he would have no problem with vibrations.
At step four, the ALJ found, based upon the testimony of a vocational
expert, that Ebert could not perform any past relevant work. T23. At step five
the ALJ found that, based on the vocational expert's testimony, Ebert could
perform jobs that existed in significant numbers in the national economy.
T24. So, the ALJ found that Ebert was not disabled. T25.
On June 20, 2014, the Appeals Council of the Social Security
Administration denied Ebert's request for review. T1. Ebert's complaint
(filing 1) seeks review of the ALJ's decision as the final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g).
II. FACTUAL BACKGROUND
On November 22, 2010, about 2 months before the alleged onset date,
Ebert went to the emergency room at Immanuel Medical Center for
abdominal pain, fever, chills, vomiting, diarrhea, and body aches. T502. He
was diagnosed with pneumonia and probable gastritis. T503. His chest was xrayed, and Barry L. Fanders, M.D. noted that "[t]he appearance of the chest
suggests atypical pneumonia, or interstitial pulmonary edema." T504. Ebert
notes that pulmonary edema is often caused by congestive heart failure,
though he was not diagnosed with heart failure at that time. Filing 17 at 6.
On December 25, 2010, Ebert was hospitalized after reporting chest
pressure, weight gain, orthopnea, and paroxysmal nocturnal dyspnea. T463.
He had a syncopal episode while shoveling snow in the days before he went to
the hospital. T463. He also reported that he had Burkitt's lymphoma as a
child. T463. He had undergone chemotherapy for that condition, and was in
Ebert was found to have cardiomyopathy with an ejection fraction of
less than 20% with moderate to severe mitral regurgitation and severe
tricuspid regurgitation. T469. Jeffrey Mahoney, M.D. implanted a single3
chamber implantable cardioverter defibrillator (ICD). T491. After the
operation, Mahoney diagnosed Ebert with severe cardiomyopathy, with a left
ventricular ejection fraction of less than 20%, baseline QRS duration of less
than 120 msec., congestive heart failure New York Heart Classification III to
V, and abrupt syncopal episode/probable aborted sudden cardiac death. T491.
During his hospital stay, Ebert also underwent procedures to treat conditions
unrelated to his cardiomyopathy: a laparoscopic cholecystectomy, a
laparoscopic bilateral inguinal hernia repair, and the removal of a
subcutaneous cyst. T469. Ebert was discharged from the hospital on January
4, 2011. T469.
About a week later, on January 10, 2011, Ebert had a follow-up
appointment with Maman Ali, M.D. T458. Ali noted that Ebert was "doing
well." T458. Ali prescribed carvedilol, spironolactone, enlapril maleate,
digoxin, and oxycodone. T459. On January 17, Ebert had another follow-up
appointment with his cardiologist, S. George Sojka, M.D. T528. Sojka noted
that Ebert complained of some chest pain since the operation. T528. Ebert
had gotten in an argument with a friend, and the friend had left him several
miles outside of town, forcing Ebert to walk. T528. Afterward, Ebert said he
had chest pressure persisting through the entire night. T528. Otherwise,
however, he reported only occasional chest pain. T528. Sojka planned to have
Ebert complete a stress echocardiogram in order to determine why he was
continuing to experience chest pains, which Sojka thought were "somewhat
atypical." T529. On January 21, Ebert had a follow-up appointment with
Mahoney regarding his ICD. T530. Mahoney noted that at this appointment,
Ebert reported "he ha[d] gotten along quite well." T530. Mahoney concluded
Ebert was healing well after the operation. T530. On February 3, Ebert had
another follow-up appointment at Douglas County Health Center. T612. He
reported a "little" chest pain and palpitation, but otherwise voiced no
On February 5, 2011, Ebert was hospitalized for 3 days after
experiencing a hypovolemic syncopal episode secondary to dehydration. T552.
Ebert reported nausea and dizziness, but no chest pain. T559. Shibu Phillip,
M.D. conducted an interrogation of Ebert's ICD. T569. He found that Ebert
had on the previous day had an episode of "SVT," or supraventricular
tachycardia, but did not believe that it contributed to the syncopal episode.
T568. Instead, Phillip concluded that the episode was likely a result of
Ebert's low blood pressure, possibly caused by one of his medications. T569.
His medications were adjusted. T569. Ebert improved overnight, and "did
very well" with cardiac rehab. T553. In addition, during Ebert's hospital stay
his doctors obtained a psychiatric consult for him because he "appeared to be
depressed." T553. He was diagnosed with depression, adjustment disorder,
and a history of polysubstance abuse. T553. On February 8, doctors
determined he was stable and discharged him. T553.
On February 17, 2011, Ebert visited the Douglas County Health Center
for a follow-up appointment. T611. According to his assessment, he had no
chest pain, dizziness, or other complaints on that date. T611. On March 3, he
visited the Douglas County Health Center for another follow-up, and again
reported no complaints. T610. On March 4, Ebert saw Mahoney at the
electrophysiology clinic. T584. Mahoney interrogated Ebert's ICD, and found
that the device was functioning normally and that Ebert had had no
significant arrhythmias. T584. Mahoney stated that since Ebert's
medications had been adjusted, his hypotension had resolved, and that Ebert
denied syncope, near-syncope, dizziness, chest pain, palpitations, orthopnea,
or paroxysmal nocturnal dyspnea. T584.
On April 4, 2011, Ebert visited the Douglas County Health Center.
T609. At that appointment, he said he had a "little" chest pain. T609. His
doctor, Nosrat Massih, M.D., noted that while Ebert was not in congestive
heart failure, his ejection fraction was low. T609. Massih adjusted Ebert's
medications. T609. He suggested that Ebert's cardiomyopathy could have
been caused by past cocaine use, and said that Ebert's condition could
improve over time. T609. On June 21, Ebert's echocardiogram results showed
"some improvement" in his ejection fraction. T607. On June 27, Ebert visited
the Douglas County Health Center for a follow-up and reported a "little"
chest pain. T607. On July 20, the Douglas County Health Center renewed
one of Ebert's prescriptions on his request. T606.
In the meantime, on May 11, 2011, Jerry Reed, M.D., the State Agency
medical consultant, reviewed Ebert's medical records for the purpose of
determining Ebert's eligibility for social security benefits. T591–98. He
concluded that Ebert could occasionally lift up to 20 pounds, frequently lift up
to 10 pounds, stand or walk about 6 hours out of 8 in a normal work day, sit
about 6 hours out of 8 in a normal work day, and would have no limitation on
pushing and pulling. T592. Steven G. Higgins, M.D. affirmed this conclusion
on reconsideration on August 10 after reviewing updated evidence, noting
that the initial finding "accommodate[d] duration and the limitations that
could reasonably be expected at 12 months" after the alleged onset date.
After July 20, 2011, there is a gap in Ebert's treatment record until
December 20, when he deliberately overdosed on his girlfriend's Citalopram
after the two had a break-up. T660. His overdose resulted in a seizure,
confusion, tremors, and an acute kidney injury, which improved during his
stay at the hospital. T660, 667. Paula Jo Malin, M.D. diagnosed him with
delirium, mood disorder, history of major depressive disorder, and possible
depression secondary to substance misuse. T681. In addition, Ebert tested
positive for amphetamines and opiates. T702. He indicated to hospital staff
that he was willing to participate in a treatment program for his
methamphetamine use. T661. The psychiatrists at the hospital later
determined that Ebert was not eligible for inpatient treatment. T661. After
Ebert's condition stabilized, he was discharged on December 28. T660.
On March 27, 2012, Ebert visited the emergency room for respiratory
issues, and was diagnosed with strep pharyngitis. T758. On May 4, Ebert
visited Jeffrey Rapp, M.D. to establish care, get his medications refilled, and
address chest pain. T626. Ebert reported that the chest pain was ongoing,
that it was not exertional, and that it was worsening. T626. He additionally
reported dyspnea, fatigue, and palpitation. T626. He had not been taking his
medications for 4 months because he did not have insurance. T626.
On June 12, 2012, Ebert visited a health clinic for sleep apnea and nonrestorative sleep. T621. After Ebert underwent a sleep study on July 25, he
was diagnosed with mild non-positional obstructive sleep apnea. T631. Rapp
concluded that he "may respond simply to improving total sleeptime and
sleep hygiene," or "an oral appliance," and that if those measures failed, he
would consider other treatment options. T631.
On August 22, 2012, Ebert initiated mental health treatment with
Vithyalakshmi Selvaraj, M.D. T769. Selvaraj diagnosed major depression,
recurrent, alcohol dependence in remission, and methamphetamine
dependence in remission, with a Global Assessment Functioning (GAF) score
of 50. T771. Selvaraj prescribed Zoloft and provided cognitive behavioral
A short time later, on August 27, 2012, Ebert saw cardiologist Banthit
Khankirawatana, M.D. T759. Ebert reported frequent fatigue, dyspnea on
exertion, and daily chest pain lasting for 2 hours at a time, and not associated
with physical exertion. T759. Khankirawatana conducted an echocardiogram,
which showed that Ebert had a left ventricle ejection fraction of 15-20%.
Khankirawatana stated that while Ebert was on appropriate medications for
cardiomyopathy, his ejection fraction had shown no signs of improvement.
Khankirawatana stated that he believed Ebert's cardiomyopathy was
nonischemic (non-cardiac) in nature, and said that if his symptoms worsened,
he should be considered for cardiac transplantation. T760.
Ebert had a follow-up mental health appointment with Selvaraj on
September 12, 2012. He reported that his mood was "much better" since
initiating Zoloft, and that he had had no side effects. T767. Selvaraj
prescribed Wellbutrin, a smoking cessation aid, and assessed Ebert with a
GAF of 55. T768. On November 14, Ebert visited Selvaraj again. This time,
he reported a low mood due to the death of his father the week before. T765.
However, he stated that he had not used methamphetamine in 2 months, and
that he had reduced his smoking. T765. Selvaraj provided supportive
psychotherapy and increased his Zoloft dosage. T766. Selvaraj gave Ebert a
GAF of 50. T766.
On January 3, 2013, Ebert had a cardiology appointment with one of
Khankirawatana's colleagues, Edmund Fiksinski, M.D. T761–62. Fiksinski
stated that Ebert's condition had remained stable since his last visit. T761.
Ebert reported that he could walk for a block without noticeable shortness of
breath, that his legs did not swell, and that he had no shortness of breath
without activity. T761. Additionally, Ebert reported that he had no
paroxysmal nocturnal dyspnea, orthopnea, sensation of irregular heart
rhythm or chest discomfort. T761. Fiksinski found that "[c]linically, Mr.
Ebert remains free of signs of congestive heart failure." T762. He ordered a
limited echocardiogram, which revealed that Ebert's left ventricle ejection
fraction was 20-25%. T763. He also sent Ebert to a pacemaker clinic for ICD
interrogation. T762. This was Ebert's final medical appointment before his
III. STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id.
The plaintiff appeals the ALJ's order on three grounds. First he argues
that the ALJ's RFC findings were not based on substantial evidence because
she incorrectly weighed the medical expert testimony. Filing 17 at 17.
Second, he argues that the ALJ incorrectly determined that he was not
entirely credible. Filing 17 at 23. Third, he argues that the ALJ's RFC
findings were not based on substantial evidence because they failed to
account for Ebert's depression. Filing 17 at 28.
1. The ALJ's weighing of medical expert testimony was based on substantial
Ebert contends that the ALJ's determination that Ebert's cardiac
impairment did not meet or equal Social Security Listing § 4.02 was faulty
because the ALJ incorrectly gave the conclusions of the medical expert who
testified at the third hearing, David West, M.D., more weight than the
conclusions of the medical expert who testified at the second hearing, Carl
Leigh, M.D. Filing 17 at 17.
Chronic heart failure meets listing § 4.02 when the requirements of
both § 4.02A and § 4.02B are satisfied. 20 C.F.R.§ 404, Subpt. P, App. 1. §
4.02. One way to satisfy § 4.02A is to produce "medically documented
presence" of "[s]ystolic failure . . . with left ventricular end diastolic
dimensions greater than 6.0 cm or ejection fraction of 30 percent or less
during a period of stability (not during an episode of acute heart failure)." §
4.02. Both Leigh and West concluded that Ebert met this requirement during
the relevant time period. T60, T77.
Section 4.02B, then, requires that the systolic failure referred to in §
4.02A results in one of several enumerated outcomes. Leigh concluded that
Ebert's heart failure resulted in the outcome listed in § 4.02B1: "[p]ersistent
symptoms . . . which very seriously limit the ability to independently initiate,
sustain, or complete activities of daily living in an individual for whom an
MC, preferably one experienced in the care of patients with cardiovascular
disease, has concluded that the performance of an exercise test would present
a significant risk to the individual." T60, § 4.02. West, in contrast, agreed
that an exercise test would present a significant risk to Ebert, but believed
that Ebert's systolic failure did not "seriously limit" his daily activities. T77–
78. West additionally concluded that Ebert's condition had not resulted in
any of the other listed outcomes in § 4.02B. T78.
The ALJ concluded that Ebert had not met the requirements of §
4.02B1. T17. In reaching this conclusion, the ALJ gave more weight to the
opinion of West than to the opinion of Leigh. See T17. In support of this
decision, the ALJ noted that Leigh did not elaborate on why he believed
Ebert met § 4.02B1, and did not specifically address Ebert's daily activities.
T17. West, on the other hand, did specifically explain his belief that Ebert's
daily living activities were not "seriously limit[ed]" by his condition. T17;
§ 4.02. Additionally, the ALJ noted that while both Leigh and West were
cardiologists, only West was board-certified in cardiology. T17. Ebert
contends that the ALJ should have relied more heavily on Leigh's testimony
than on West's. Filing 17 at 17.
"It is the function of the ALJ to weigh conflicting evidence and to
resolve disagreements among physicians." Kirby v. Astrue, 500 F.3d 705, 709
(8th Cir. 2007). The weight given to non-treating, non-examining sources
depends in part "on the degree to which they provide supporting
explanations." Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001) (quoting 20
C.F.R. § 404.1527(d)(3)). In addition, the more consistent an opinion is with
the record as a whole, the more weight it is given. 20 C.F.R. § 404.1527(c)(4).
And more weight is generally given to the opinion of a specialist about
medical issues related to the area of specialty. 20 C.F.R. § 404.1527(c)(5).
Finally, the ALJ may assign weight based on any other relevant factor,
including "the amount of understanding of our disability programs and their
evidentiary requirements" a medical source has, and the extent to which a
medical source is familiar with the case. 20 C.F.R. § 404.1527(c)(6).
First, Ebert takes issue with the ALJ's reliance on the fact that Leigh
did not elaborate on Ebert's daily activities, while West did. Filing 17 at 18.
According to Ebert, this analysis was disingenuous because the ALJ did not
ask Leigh to explain further. Filing 17 at 18. Additionally, Ebert points out
that the ALJ continued the second hearing only to obtain a statement from
Khankirawatana as to whether Ebert was a candidate for heart transplant.
Filing 17 at 18. If Ebert was a candidate for heart transplant, Leigh believed
Ebert would meet the listing for the entire alleged period of disability;
otherwise, Leigh believed Ebert would meet the listing only for December 1,
2010 to December 28, 2011. T60, 61. Thus, according to Ebert, at the third
hearing the ALJ should have considered, based on information from
Khankirawatana, only whether Ebert could meet listing § 4.02 for the entire
period, or just from December 1, 2010 to December 28, 2011. See filing 17 at
18. But the mere fact that the ALJ seemed to find Leigh's conclusion
persuasive at the second hearing does not preclude her from later eliciting
testimony from another medical expert, and revising her opinion based on
new or additional testimony. As previously noted, resolving disagreement
among medical sources is the province of the ALJ, and that is just what the
ALJ did here. See Kirby, 500 F.3d at 709.
Next, Ebert argues that Leigh did, in fact, provide support for his
opinion. Filing 17 at 19. Although Leigh did not specifically discuss Ebert's
ability to engage in daily activities, Leigh did refer to evidence in the medical
record that, Ebert argues, supports Leigh's implicit conclusion that Ebert's
ability to engage in daily activities was seriously limited. Filing 17 at 19. It is
true that "[t]he more a medical source presents relevant evidence to support
an opinion" the more weight an ALJ is entitled to give that opinion. 20 C.F.R.
§ 404.1527(c)(3). However, the Social Security regulations also specify that
"[t]he better an explanation a source provides for an opinion," the more
weight an ALJ may give that opinion. Id. Here, although Leigh cited some
evidence to support his opinion, he did not provide an explanation as to why
he felt that evidence demonstrated that Ebert met the requirements of §
4.02B1. See T60. West, on the other hand, provided both citations and an
explanation for his opinion. T77–78. Thus, the ALJ did not err in giving
Leigh's opinion less weight than West's.
Finally, Ebert contends that because Leigh has "extensive familiarity
with Social Security rules, regulations and listings," his opinion should have
been given more weight than West's. Filing 17 at 19. According to Ebert,
West demonstrated that he was "unfamiliar with the methodology of forming
an appropriate RFC." Filing 17 at 21. First, Ebert points to an exchange
between the ALJ and West during the third hearing, in which West—
according to Ebert—confused "meeting" and "equaling" a Social Security
listing. Filing 17 at 19. Second, Ebert highlights that at one point during the
hearing, West "expressed his puzzlement" when the ALJ asked him what
Ebert would have to do after sitting for an hour. Filing 17 at 21. In the
portion of the transcript cited, West said, "So I've always been puzzled by
Social Security. I believe that he should stand every hour. In fact, I believe
most of us should stand every hour." T70.
The Court is not persuaded that these comments demonstrate that
West is unfamiliar with the Social Security regulations. But even if the Court
were to reach that conclusion, that is not sufficient to render the ALJ's
reliance on his testimony "deficient and not supported by substantial
evidence on the record as a whole." See filing 17 at 21. The "amount of
understanding of our disability programs" is just one of several factors the
ALJ may consider in determining how much weight to assign to a medical
source's opinion. 20 C.F.R. § 404.1527(c)(6). And an administrative decision is
not subject to reversal simply because some evidence might support a
different conclusion. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir.
2001). In sum, the ALJ's decision to give Leigh's conclusions more weight
than West's was proper under 20 C.F.R. § 404.1527.
2. The ALJ’s credibility determination was supported by substantial evidence
Ebert additionally argues that the ALJ's conclusion that Ebert's
complaints were not credible was improper because the ALJ incorrectly
determined that Ebert's complaints were inconsistent with the record as a
whole. Filing 17 at 23.
In finding that a claimant's subjective complaints are not credible, an
ALJ must give full consideration to "the claimant's prior work record, and
observations by third parties and treating and examining physicians relating
to such matters as: 1. the claimant's daily activities; 2. the duration,
frequency and intensity of the pain; 3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication; 5. functional
restrictions." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ
must "must make an express credibility determination explaining the reasons
for discrediting the complaints." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.
2000). And though the ALJ need not specifically discuss each Polaski
consideration, the ALJ should "acknowledge and consider the factors."
Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009). In reviewing a credibility
determination, "[i]f an ALJ explicitly discredits the claimant's testimony and
gives good reason for doing so, [the Court] will normally defer to the ALJ's
credibility determination." Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
The ALJ found that "the claimant's medically determinable
impairments could reasonably be expected to cause the alleged symptoms."
T18. However the ALJ concluded that "the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms are not
credible to the extent that they are inconsistent with the residual functional
capacity." T18. The ALJ explained that Ebert's "complaints suggest a greater
severity of impairment than can be shown by the objective medical evidence
The ALJ relied on several different pieces of evidence in determining
that Ebert's subjective complaints were not credible. First, she observed that
the longitudinal medical evidence did not support Ebert's complaints. T21. At
several medical appointments, Ebert did not report the severe symptoms he
now alleges. Between February 25, 2011 and May 4, 2012, he reported either
no or "little" chest pain, shortness of breath, and edema. See T21. The ALJ
noted that he did report chest pain and shortness of breath on May 4, 2012,
but observed that at that time, Ebert had been off his medications for 4
months. T21. Finally, the ALJ considered that on August 27, 2012, Ebert
reported fatigue and dyspnea, but no chest pain. T21, 759. However, the ALJ
noted that at his January 3, 2013 follow-up, Ebert reported stability in his
condition, with no shortness of breath without activity or chest discomfort.
T21. The ALJ also identified several gaps in the record in which Ebert sought
no medical treatment of any kind: from June 27, 2011 to December 20, 2011;
from December 28, 2011 to March 27, 2012; from May 4, 2012 to July 25,
2012; and from August 27, 2012 to January 3, 2013. T21.
Next, the ALJ observed that although Ebert reports that he restricts
his daily activities, no doctor seems to have suggested that he do so, and both
the state agency consultants believed he could perform light work. T22. And,
as previously discussed, the ALJ credited West's opinion that Ebert's
symptoms did not seriously limit his daily activities. T22–23. The ALJ also
noted her obligation to consider Ebert's mother's statement that Ebert's
condition restricted his daily activities. T23. However, she granted it only
some weight, "since it shows that he can prepare his own meals and attend to
personal grooming needs." T23.
Ebert takes issue with some of the inconsistencies the ALJ relied upon
in determining that his subjective complaints were not credible, arguing that
the ALJ should have drawn different inferences from the record. See filing 17
at 23–27. However, Ebert's criticisms are not persuasive. Ebert has identified
no reversible error, and the ALJ's credibility determination is clearly wellsupported by the evidence, most of which Ebert has not meaningfully
challenged. See Gregg, 354 F.3d at 714.
Finally, Ebert argues that other evidence in the record is consistent
with his subjective complaints, including: his hospitalizations; one cardiology
appointment at which he reported chest pain, dyspnea, and fatigue; the
statement of Ebert's mother; Ebert's Social Security questionnaires, in which
he reports shortness of breath and chest pain; and West's statement that
Ebert's limited cardiac functioning would be likely to produce significant
fatigue. Filing 17 at 25. But the ALJ's credibility determination is not
reversible "simply because some evidence may support the opposite
conclusion." Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994). The Court
finds that the ALJ's credibility determination is substantially supported by
3. The ALJ did not err by not accounting for Ebert's depression
Finally, Ebert argues that the Commission failed to appropriately
account for Ebert's depression in determining his RFC. Filing 17 at 28. Ebert
did not allege any mental impairments at the time of his application for
Social Security benefits. See T378. Nor did Ebert’s representative raise the
possibility of a mental impairment at any of the hearings. And at the second
hearing, when the ALJ asked the representative if she was arguing that
Ebert met or equaled any listings, she responded that they would argue
Ebert met § 4.02, and did not mention any mental health listings that Ebert
might meet. T44. Ebert argues that nonetheless, the ALJ failed in her
obligation to fully develop the record with respect to his mental impairments,
and the Appeals Council failed to consider new evidence he provided
regarding his depression. Filing 17 at 29, 30.
First, Ebert argues that although he did not raise the possibility of a
mental health impairment in his application or at the hearings, the ALJ had
an obligation to develop the record further with respect to Ebert's mental
health. Filing 17 at 29. At the time of Ebert's hearing, the evidence before the
ALJ included records of Ebert's December 2011 hospitalization following a
suicide attempt, records that referred to a previous suicide attempt, and
records that during his February 2011 hospitalization, Ebert was diagnosed
with depression and adjustment disorder. See T16, T19, T29. However, the
records relating to Ebert's three mental health treatment appointments in
2012 were not provided to the ALJ. T29. Ebert provided those records for the
first time to the Appeals Council with his Request for Review. T29.
The Eighth Circuit has held that an ALJ has no duty "to investigate a
claim not presented at the time of the application for benefits and not offered
at the hearing as a basis for disability." Gregg, 354 F.3d at 713 (quoting Pena
v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)). Thus, for example, in Kitts v.
Apfel, the Eighth Circuit held that where the claimant did not allege a
mental impairment in her application or at the hearing, the ALJ was not on
notice of a need to develop the record further, even though the record showed
that the claimant had been diagnosed with anxiety and prescribed antianxiety medication. 204 F.3d 785, 786 (8th Cir. 2000). Because Ebert did not
allege disability based on mental impairments in his application for benefits,
nor during his administrative hearing, the ALJ fulfilled her duty to fully
develop the record.
Second, Ebert argues that the Appeals Council had an obligation to
consider the new evidence relating to Ebert's three mental health treatment
appointments, and that it failed to do so. Filing 17 at 30. Social Security
Regulations require that the Appeals Council "evaluate the entire record
including the new and material evidence submitted if it relates to the period
on or before the date of the administrative law judge hearing decision." 20
C.F.R. § 404.970(b). According to Ebert, "[t]here is nothing in the decision of
the Appeals Council which indicates that . . . regulation was followed," and "it
is clear that this case should have been, at a minimum, remanded to the ALJ
for proper consideration of the appropriate psychiatric limitations." Filing 17
However, the letter that the Appeals Council sent to Ebert notifying
him of the denial of his request for review did, in fact, state, "In looking at
your case, we considered the reasons you disagree with the decision and the
additional evidence listed on the enclosed Order of Appeals Council." T2
(emphasis supplied). The Order of Appeals Council lists exhibit 16E, a
memorandum from Ebert's attorney, and 15F, "[m]edical records from
Alegent Creighton Clinic, dated August 22, 2012 through November 14,
2012." T4. Clearly, the Appeals Council considered the new evidence at issue.
And where "it is clear that the Appeals Council has considered newly
submitted evidence, we do not evaluate the Appeals Council's decision to
deny review." Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). Therefore,
the Commissioner did not err in determining Ebert's RFC without reference
to his alleged mental impairments.
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Ebert. The Court finds that
the Commissioner's decision was supported by substantial evidence and
should be affirmed.
THEREFORE, IT IS ORDERED:
The Commissioner's decision is affirmed;
This case is dismissed;
The parties shall bear their own costs; and
A separate judgment will be entered.
Dated this 15th day of January, 2016.
BY THE COURT:
John M. Gerrard
United States District Judge
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