Vannett v. Social Security Administration

Filing 16

ORDER by Magistrate Judge Charles S. Miller, Jr. denying Plaintiff's 10 Motion for Summary Judgment; granting Defendant's 13 Motion for Summary Judgment. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Lisa Vannett,

)
)
Plaintiff,
)
)
vs.
)
)
Carolyn W. Colvin, Acting Social Security )
Administration Commissioner,
)
)
Defendant.
)

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
(Not For Publication)
Case No. 4:15-cv-091

The plaintiff, Lisa Vannett (“Vanett”), seeks judicial review of the Social Security
Commissioner’s denial of her applications for Social Security Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). This court reviews the Commissioner’s final decision
pursuant to 42 U.S.C. § 405(g).
I.

BACKGROUND
A.

Procedural history

Vannett filed applications for DIB and SSI on May 31, 2012. (Tr. 257-264). Therein she
alleged a disability onset date of January 1, 2007. (Id.). She subsequently amended her alleged
onset date to April 26, 2012.

(Tr. 60).

Her

applications was denied initially and upon

reconsideration. (Tr. 193-204).
At Vannett's request, an Administrative Law Judge (“ALJ”) convened an administrative
review hearing on December 15, 2013. (Tr. 56-114, 206-07, 226-231). On January 22, 2014, the
ALJ issued a written decision denying Vannett's applications. (Tr. 14-39). The Appeals Council
denied Vannett's subsequent request for review and on May 11, 2015, adopted the ALJ’s decision
as the Commissioner’s final decision. (Tr. 1-3).
1

Vannett initiated the above-entitled action, seeking judicial review of the Commissioner’s
final decision pursuant to 42 U.S.C. § 405(g). The parties have since filed summary judgment
motions that are now ripe for review. They have also filed notice of their consent to the
undersigned’s exercise of jurisdiction over this matter.
B.

Factual background
1.

Vannett's personal data and work history

Vannett stands five feet four and one-half inches tall. (Tr. 60). At the time of her
administrative hearing she was 34 years old and weighed 296 pounds. (Tr. 60-61). She has a high
school diploma. (Tr. 62). She is unmarried and has no children. (Id.). She lives with her boyfriend.
(Tr. 61).
Vannett was self employed as childcare/daycare provider (for one child) from January
through June 2008. (Tr. 309, 314, 317, 373). She has also worked as a cashier, customer service
representative, support staff for individuals with developmental disabilities, and a certified nurse’s
assistant. (Tr. 296-303, 332, 373). She was most recently employed as a cashier in the food services
industry. (Id.). She has not engaged in any substantial gainful activity since April 2012. (Tr. 62).
She subsists on her boyfriend's income and food stamps. (Tr. 61).
Vannett suffers from recurrent plantar fasciitis and posterior tibial tendonitis of the right foot,
a degenerative disc disease of the lumbar spine, a thorasic bone spur; morbid obesity; diabetes
mellitus; attention deficit hyperactivity disorder (“ADHD”); major depressive disorder; and
borderline intellectual functioning. (Tr. 20). She has also complained of asthma, vision problems,
insomnia, memory issues, and chronic pain secondary to her ongoing back and foot issues. (Tr. 63).
She has at one time or another been prescribed Albuterol, Flovent, and Servent for her asthma,

2

Cymbalta for her depression, Lantus, Meformin, Novalog, and Ongyiaza for her diabetes mellitus,
Vyvanse for her ADHD, Ambien for her insomnia, and Gabapentin, Hydrocodone, and a Lidoderm
patch for her pain. (Tr. 333). She has also been prescribed Lisinpril for high blood pressure and
Lovasa for high cholesterol. (Id.).
2.

Summary of Vannett’s relevant medical history

Vannett thrice presented to the emergency room on April 2011 complaining of lower back
and sinus pain. (Tr. 435-440, 441, 445-47). Each time she was given either prescribed medication
or given injections to alleviate her pain and thereafter discharged in stable condition. (Id.).
On April 28, 2011, Vannett presented to Dr. John Gillman for a psyshiatric evaluation and
treatment for persistent lower back pain. (Tr. 441-43). Dr. Gillman recommended that a
conservative course of treatment that included physical therapy and exercise with the use of
analgesics and muscle relaxers. (Tr. 443). He further advised Vannett to follow up with the
physiatry clinic. (Id.).
Vannett reported to Dr. Martire for physiatry followups every 84 days beginning in May
2011 and ending in March 2012. (Tr. 391-394). Following each visit, Dr. Martire’s noted that
Vannett suffered from persistent neck and back pain but that the Daypro had helped to alleviate
some of the swelling in her ankle, that she was doing home exercises, that Lorcet had significantly
helped with the pain and that she was stable. (Id.).
Meanwhile, Vannett began regularly reporting to North Central Human Services seeking
assistance in managing her depression and ADHD. (Tr. 397-400, 534-59. She also reported
periodically to a family nurse practitioner (“FNP”) for “diabetes followup.” (Tr. 448-450, 453-54).

3

On June 6, 2011, Vannett presented to Dr. Chi Yeung with incontinence issues. (Tr. 45556). In Dr. Yeung’s opinion, Vannett’s incontinence issues were directly attributable to her weight
and that she was not a candidate for surgical intervention. (Id.).
On June 30, 2017, she returned to Dr. Gillman, who, in addition to recommending physical
therapy, renewed her prescription for acetaminophen-hydrocone and scheduled her for a therapeutic
injection to the her left socroiliac joint. (Tr. 451-52). .).
Vannett went to physical therapy four times between June 7, 2011, and July 19, 2011. (Tr.
457-62). On July 4, 2011, she returned to Dr. Gillman, for a followup examination. According to
the treatment notes, Vannett reported that her therapy had been helping her. (Tr. 463-64).
Nevertheless, it appears that Vannett never returned for additional therapy following her July 19th
session. (Tr. 462).
On August 2, 2011, Vannett presented to the emergency room with a headache, abdominal
pain, and nausea. (Tr. 465-70). A CT scan of her head was normal. (Id.). She was given IVs of
fenanyl and Zofran. (Tr. 469). Her headache, pain, and nausea thereafter resolved and she was
discharged. (Id.).
On August 9, 2011, Vannett returned to Dr. Gillman for a followup examination. (Tr. 47173). According to Dr. Gillman’s notes, Vannett complained of head pain that rated an 8 and lower
back pain on her left side that rated a 6. (Tr. 471). Dr. Gillman renewed her prescription for
hydrocodone with acetaminophen, started her on a trial of Phenergen, rescheduled her therapeutic
left sacroiliac injection, and recommended that she “continue conservative management with activity
modification, home exercise modality program, and analgesic medication.” (Id.).
On September 12, 2011, Vannett reported FNP Ler to for a diabetes and cholesterol checkup.

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(Tr. 472). In her notes, FNP Ler documented Vannett’s lack of adherence to her medication along
with the fact she had elevated liver function tests. (Tr. 473).
The next day Vannett report to Dr. Gillman for the left sacroiliac injection. (Tr. 476-78).
She also followed up on her elevated liver function tests with an FNP. (Tr. 474), Suspecting that
the test results could have been aggravated by certain medications prescribed to Vannett, the FNP
cut the dosage of certain medications and further advised Vannett to modify her diet. (Tr. 475).
On September 13, 2011, Vannett underwent an abdominal ultrasound, the results of which
showed fatty infiltration. (Tr. 479). On September 23, 2011, she again met with FNP Ler, who
advised her to remain on her current regimen and submit to a recheck of her liver function. (Tr.
481).
On September 28, 2011, Vannett presented to Dr. Gillman. According to the clinic notes,
Vannett reported that she had experienced temporary relief following the injection but her pain had
returned. (Tr. 482). Dr. Gillman administered a left gluteal trigger point injection and directed her
to follow up as necessary. (Tr. 482-83).
On October 17, 2011, Vannett presented the emergency room complaining of a frontal
headache and nausea. (Tr. 485) According to the treatment records, her headache and nausea
resolved after a couple of hours and she was discharged in stable condition. (Tr. 489).
On October 21, 2011, Vannet presented to a FPN complaining that her headache and nausea
had returned. (Tr. 490). The FPN ordered Vannett stop taking pain medication and started her
on a Z-Pak. (Tr. 491).
On October 25, 2011, Vannett returned to the FNP to follow up on her liver function tests
and diabetes. (Tr. 492). According to the FNP Vannett’s diabetes was not controlled but had

5

nevertheless improved. (Tr. 493).
On October 26, 2011, Vannet presented to Dr. Kellenberger with complaints of chronic
headaches. (Tr. 494-497). Based upon the his examination of Vannett and review of her medical
history, Dr. Kellenberger concluded that the headaches were secondary to underlying recurrent
sinusitis. (Tr. 496). He recommended that she curtail her consumption of painkillers, adopt a
healthier lifestyle, and submit to physical therapy. (Id.).
On November 4, 2011, Vannett presented to the emergency room complaining of facial pain.
(Tr. 501-505). A CT scan showed a possible periapical abscess alongside one of her teeth. (Tr.
503-04). She was given some educational materials, started her on an antibiotic, and told to follow
up with a dentist or her primary care provider. (Id.).
On November 6, 2011, Vannett called Dr. Charles Swenson to report that she was suffering
from recurrent headaches. (Tr. 484). Dr. Swenson instructed her to, amongst other things, take
over-the-counter headache medicine as necessary. (Id.).
On November 7, 2011, Vannett presented to Dr. Sandeep Sule with a “sinus headache.” (Tr.
505-06). Finding nothing wrong with her, Dr. Sule referred her to neurology for further evaluation.
(Tr. 506).
Meanwhile Vannett continued to report to Dr. Gillman. (Tr. 507-10, 514-15). At each visit
Dr. Gillman renewed her prescriptions medications and administered additional left gluteal trigger
point injections. (Tr. 507-08, 515, 520-21).
On December 20, 2011, Vannett returned to the FNP for a diabetes followup. (Tr. 511-12).
According to the FNP’s notes, Vannett’s liver functions stabilized and that she was exercising three
days per week at the YMCA. (Tr. 512).

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On February 11, 2012, Vannett presented to Dr. Ann Hoffman with right foot pain. (Tr.
516-19). Concluding that Vannett was suffering from plantar fascitis, Dr. Hoffman prescribed her
oxycodone and directed her to follow up with Dr. Gillman as needed. (Tr. 518).
On February 24, 2012, Vannett presented to the emergency room complaining of left groin
and buttock pain. (Tr. 522). She underwent a pelvic ultrasound, the results of which were normal.
(Tr. 526). She was diagnosed with pelvic inflammatory disease, given a prescription for painkillers
and discharged. (Tr. 524-25). She followed up with Dr. Timothy Bedell on March 12, 2012. (Tr.
532-33).
On April 4, 2012, an MRI was taken of Vannnett’s thoracic spine. (Tr. 432). It confirmed
that she was suffering from a degenerative disc disease. (Tr. 433).
On May 7, 2012, Vannett presented to a Nurse Practitioner with complaints of thoracic back
pain. (Tr. 426-27). On examination she exhibited a normal gait, and full strength in her lower
extremities. (426) When asked to rate her pain on a scale of 0 to 10, she responded that it was a 7.
(Id.).
On May 9, 2012, Dr. Martire terminated his relationship with Vannett via letter. (Id.). In
subsequent correspondence with Vannett’s attorney, he declined to fill out a physical capacities
evaluation for Vannett and further recommended that she submit to a 2-day functional capacity
assessment. (Tr. 396). In so doing he offered the following:
Ms. Vannett does not have any history of surgery. She has chronic mechanical
neck, middle and low back pain. I feel she would most likely be more of a light duty
category where she needs to change positions as need. I do not feel, based on her
physical diagnoses, that she is unemployable. She most likely would be able to work
only part-time or on a semi-time basis, as this is only what she has been capable
doing in the past.
(Id.).
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On May 26, 2012, Vannett presented to the emergency room with what was subsequently
diagnosed as sinusitis. (Tr. 429-431). She given prescriptions for an antibiotic and pain killers and
discharged. (Tr. 431).
On June 22, 2012, Vannett presented to an FNP for a “followup of her diabetes.” (Tr. 423425). Noting that Vannett’s diabetes was uncontrolled, the FNP encouraged Vannett to engage in
activity, lose weight, and eat healthier. (Tr. 424).
On June 22, 2012, Vannett reported to Dr. Michael Templar with multiple pain complaints.
(Tr. 415-17). She was given a trial of Neurotonin along with a prescription for Robaxin, a muscle
relaxer, and directed to return in 1 month. (Tr. 416).
On August 23, 2012, Vannett reported to the emergency room with complaints of back pain.
(Tr. 410-414). According to the treatment notes, she was diagnosed with a thoracic sprain. (Tr.
414). She was issued a prescription for acetaminophen-hydrocodone and discharged. (Id.).
On September 15, 2012, Vannett reported to the emergency room with back pain, thoracic
pain, and exacerbation of chronic pain from a bone spur. (Tr. 405-07). She was given educational
materials and discharged. (Tr. 407).
On September 20, 2012, Vannet reported to Dr. Michael Templer with complaints of a
recent onset of neck pain and headaches, the intensity of which she rated as a 7 on a scale of 0 to 10.
(Tr. 403-04). Dr. Templer scheduled her for an MRI. (Id.).
On September 21, 2012, Vannett reported to a FNP for a “followup on her diabetes and
lipids.” (Tr. 408-09). Noting that Vannett’s diabetes was not well controlled, the FNP adjusted her
medications and directed her to return in 3 months. (Tr. 409).
Vannett began doctoring at the UND Center for Family Medicine in late October 2012. She

8

thereafter checked in regularly for followup evaluations for her chronic back pain and diabetes. (Tr.
564-88). The records of these visits suggest that her response to treatment was mostly positive. (Id.).
On December 4, 2012, Vannett presented to Dr. Tyson Williams complaining about severe
pain in her right heel. (Tr. 652). Dr. Williams scheduled her for surgery to excise scar tissue that
had built up following a previous surgery. (Id.)
On January 6, 2013, Vannett had surgery on her right foot. (Tr. 628-29). During a followup
examination on February 20, 2013, she received cortisone shot to her central plantar fascia. (Tr.
647). She was subsequently referred for physical therapy (Tr. 590-82). Although she submitted
to an assessment on May 29, 2013, it is not entire clear from the record whether she followed
through on the recommended course of therapy. (Id.).
On April 28 , 2013, Vannett presented to the emergency room complaining of recurrent back
pain. (Tr. 674-77). She was given an injection of Dilaudid and instructed to followup with her
primary care provider as necessary. (Tr. 675, 677).
On May 6, 2013, Vannett presented to FNP Durand Jones complaining of back pain. (Tr.
643-44). FNP Jones’ plan was start Vannett on physical therapy for her next and trapezius muscles,
order an MRI and bone scan, and encourage her to continue getting her pain medications through
her primary physician. (Tr. 644).
On July 3, 2013, Vannett returned to FNP Jones. (Tr. 639-42). In his notes, FNP Jones
stated that Vannett was under no acute distress, that her MRIs and CT scans did not show any areas
that required neurosurgical intervention, and that she was being referred to the pain clinic. (Tr. 64142).
On August 26, 2013, Vannett presented to Dr. Frashant Morolia with complaints of lower

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back and right leg pain. (Tr. 599-600). According to the examination notes, an MRI of her lower
back revealed a disk fragment at T11-T12. (Tr. 600).
On September 13, 2013, Vannett presented to Dr. Tyson Williams with level 8 pain in her
right foot and pustules on the right 4th toe. (Tr. 636). Dr. Williams recommended that she use a
soft orthotic on her right heel, took a culture of the pustules, and prescribed an oral antibiotic as a
precautionary measure. (Id.). The cultures came back negative for staph. (Tr. 638).
3.

“Function Report”

Vannett’s mother, Renee, submitted a “Function Report” to the Commissioner on Vannett’s
behalf. Therein, Renee stated that Vannett could stand no more than 1 hours without swelling, could
lift no more than 5 pounds at a time, was forgetful, tired quickly, needed assistance when dressing
and bathing, had limited social contact with others, and performed few chores around the house.
(Tr. 347-54).
Renee subsequently wrote to the Commissioner, reiterating that Vannett was under great
physical, mental, and financial strain and asserting prospective employers did not consider Vannett
to be employable on account of her health issues. (Tr. 356).
4.

Consulting Physician Reports
a.

Psychological Assessments

Social Security Disability Determination Services referred Vannett to Dr. Timothy Eaton,
a licensed clinical psychologist, for evaluation in March 2012. (Tr. 386-389) Based upon his
observations and test results, Dr. Eaton concluded:
The results of the present evaluation reveal an individual with overall intellectual
functioning in the borderline range, and memory fluctuates that would be
commensurate with these abilities. She has not likely suffered from any memory
deterioration, but her memory likely is affect by variable attentional performances
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as well as simply more limited abilities. She will have a tendency to be very
forgetful and easily overwhelmed with any significant job task, although should be
able to do relatively basic manual labor type tasks depending on how much her
physical conditions affect her abilities. This appears to the be primary problem for
Ms Vannett, as she has primarily focused on jobs she can do within her abilities in
the past but her physical limitations have now made those jobs even more difficult
for her. Her depressive symptoms appear to be somewhat better although are still
fragile and her attention deficit appears to be reasonably managed with current
medication.
(Docket No. 389).
b.

Physical Assessments
(i)

Dr. Marlin Johnson

Dr. Marlin Johnson conducted a “paper review” of Vannett’s records at the Commissioner’s
behest in October 2012. (Tr. 145-150). Therein he acknowledged that Vannett suffered from
medically determinable impairments, all of which he considered severe save two--asthma and
diabetes mellitus. (Tr. 145). He also acknowledged that Vannett suffered from organic mental
disorders and affective disorders but added that they only mildly impacted her ability to engage in
daily activities, maintain social functioning, and maintain concentration, persistence, and pace. (Tr.
146). When weighing the opinion evidence, he afforded great weight to Dr. Martire’s statements.
but discounted Vannett’s self assessment on the grounds that she was prone to overstatement. (Id.).
With respect to Vannett’s residential function capacity, Dr. Johnson determined that she remained
capable of: (1) frequently lifting and/or carrying 10 pounds; (2) standing and/or walking for a total
of 2 hours; (3) sitting for more than 6 hours on a sustained basis in an 8-hour workday; (4)
occasionallying climb ramps/stairs, ropes/ladders/scaffolds; and (5) occasionally balancing,
stooping, kneeling, crouching, and crawling. (Tr. 148).

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(ii)

Dr. Ernest Goodfried

The record contains a second “paper review” of Vannett’s records by Dr. Ernest Goodfried
in December 2012. (Tr. 168-176). Dr. Goodfried’s findings mirrored those in Dr. Johnson’s
earlier review. (Id.)
5.

Administrative hearing
a.

Vannett's testimony

Vannett testified that she is unable to work on a regular basis because of her depression,
chronic foot and back issues, difficulties in managing her diabetes, and insomnia. (Tr. 61-63).
When asked to elaborate, she testified that: her foot swells when standing on it for more than thirty
minutes at a time; she is bipolar; her depression leaves her feeling unmotivated; she finds it next to
impossible to maintain a regular sleep schedule and what little sleep she is able to get is generally
fitful; fluctuations in blood sugar leave her feeling "shaky," she fatigues very easily, and she suffers
from chronic pain that averages out to a seven or eight on a scale of one-to-ten. (Tr. 63-65, 71, 7880, 82-83). She also testified that her pain is exacerbated when standing, sitting, or lying down for
extended periods of time and that her prescription painkillers are minimally effective.
With respect to her daily routine, Vannett testified as follows. She does not drive and can
do very little on her bad days. On her good days she attends to her personal needs, wash clothes
(assuming that she can get a ride to a laundromat), does some light cleaning around her apartment,
and cooks her boyfriend a meal and/or goes out for coffee with her mother. (Tr. 77-78, 83-86). She
also crafts as her conditions permits, tries to go for a short walk every day, and reads up to one-hour
daily (but struggles to comprehend and retain what she is reading). (Tr. 73-76, 86-88).
When queried about her social life, Vannett testified that she does not venture out often, that

12

she is averse to crowds, and that her social circle consists primarily of family members. When asked
whether she uses a computer or access the Internet, Vannett responded that she currently does little
on the computer other than periodically checking her Facebook account. She did, however,
acknowledge that, in 2013, she had enrolled in an number of online courses with the aim of
obtaining her degree in social work. (Tr. 89). In so doing she advised that, with help from tutors,
she had made the Dean's list her first quarter but dropped out after her second quarter due to
plummeting grades. (Tr. 92-94).
When asked to elaborate on her physical limitations and attendant discomfort, Vannett
testified that the swelling in her foot precluded her from standing for more than 30 minutes at a time,
that she has to elevate her foot to alleviate the swelling, that she can sit no more than 45 minutes,
and that she can lift no more than 5 pounds at a time on account of her back. (Tr. 95-96 ). She
further testified that she oftentimes struggles to get of bed, change out of her pajamas, and shower
and she finds it difficult to maintain her focus/concentration for more than an hour. (Tr. 98).
b.

Chad Charboneau's testimony

Vannett's boyfriend, Chad Charboneau testified that Vannett commonly experienced mood
swings, that she has difficulty getting out of bed, that her overall health has been and continues to
deteriorate, and that, despite her best efforts, and that she requires assistance to perform routine
household chores. (Tr. 105-106). When asked whether Vannett suffered from any observable
mental or emotional difficulties, he responded in the affirmative. (Tr. 106-07).
c.

Vocational expert’s testimony
(i)

ALJ’s inquiries

The ALJ posed four hypotheticals to the vocational expert. First, she inquired whether a

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hypothetical individual of Vannett's age, education, and vocational background could perform
Vannett's past relevant work if she: (a) could lift and or carry 10 pounds occasionally and less than
10 pound frequently; (b) could sit for 7 hours and either stand or walk for 2 hours in an 8-hour work
day; (c) could remain in one position for no more than 15 minutes at a time; (d) could occasionally
climb stairs and ramps; (e) could never climb ropes, ladders, or scaffolds; (f) could occasionally
balance, stoop, kneel, crouch, and crawl; (g) should not be exposed to unprotected heights or moving
mechanical parts; and (h) could understand, remember, and carry out simple tasks. (Tr. 108-110).
The vocational expert responded in the negative. (Tr. 110).
Second, the ALJ inquired whether this hypothetical could perform any other work. (Id.).
The vocational expert responded that such a person should be capable of performing some sedentary
work as a order clerk, account clerk, assembler, for example, so long as she lifted no more than 10
pounds and sat no more than 6-hours in a day with 15 minute intervals of standing. (Id.).
Third, the ALJ inquired whether this hypothetical person could still perform such sedentary
work on a competitive basis if she could be expected to miss 2 days of work per week. (Tr. 111).
The vocational expert responded that such a high rate of absenteeism was not compatible with fulltime employment. (Tr. 111).
Fourth, the ALJ inquired whether this hypothetical person's ability to work would be
compromised if she were to required to elevate her foot to waist level for one quarter of each work
day. (Tr. 111-112). The vocational expert responded that the need to elevate one's foot on a box,
say 8 to 12 inches in height, would pose no obstacle to employment but that the need to elevate one's
foot to heart- level would essentially rule out competitive employment. (Tr. 112).

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(ii)

Counsel’s Inquiry

Vannett’s counsel first inquired whether an employer would tolerate an individual who was
required to leave the work area to or three times an hour. (Id.). The vocational expert responded
that it was unlikely such “breaks” would be tolerated. (Id.). Counsel next inquired whether an
inability to focus/concentrate for two-hours at time or an inability to complete a shift inability to
complete shifts posed a barrier to competitive employment. (Tr. 112-13). The vocation expert
responded in the affirmative. (Tr. 113).
C.

ALJ’s Decision

The ALJ employed the five-step sequential analysis when evaluating Vannett's application.
At step one, the ALJ concluded that Vannett (1) met the insured status requirements of the Social
Security Act through December 31, 2012, and (2) had not had not engaged in any substantial gainful
activities since April 26, 2016, the amended alleged onset date. (Tr. 19). At step two, the ALJ
acknowledged that Vannett suffered from the following severe impairments: recurrent plantar
fasciitis and posterior tibial tendonitis of the right foot; degenerative disc disease of the lumbar
spine; thoracic spine bone spur; morbid obesity; diabetes mellitus; attention deficit hyperactivity
disorder (“ADHD”); major depressive disorder; and borderline intellectual functioning. (Tr. 20).
Conversely, the ALJ concluded that Vannett’s asthma did not constitute a severe impairment as the
record did not evidence she required any ongoing treatment for it. (Id.). The ALJ also rejected
Vannett’s allegation that she suffered from vision limitations on the ground that it was not borne out
by her medical records. (Id.).
Moving on to step three, the ALJ concluded that none of Vannett’s aforementioned
impairments, either singly or in combination, were presumptively disabling. (Tr. 21-22).

15

At step four, the ALJ made the following determination with respect to Vannett’s residual
function capacity:
[T]he claimant has the residual functional capacity to perform less than the full range
of sedentary work as defined by 20 CFR 404.1567(a) and 416.967(a). Specifically,
the claimant can occasionally lift and/or carry 10 pounds and frequently lift and/or
carry less than 10 pounds. She can stand and/or walk (with normal breaks) for a total
of about 2 hours in an 8-hour workday, and sit (with normal breaks) for a total of
about 2 hours in an 8-hour workday. The claimant is limited to standing or walking
15 minutes at one time, and then needs to sit down. She can occasionally climb
ramps and stairs, but can never climb ladders, ropes, or scaffolds. The claimant can
occasionally balance, stoop, kneel, crouch, and crawl and can occasionally use foot
controls on the right. Mentally, the claimant can understand, remember and carry out
simple instructions.
(Tr. 23). In making this determination, the ALJ acknowledged Vannett’s medically determinable
impairments could reasonably be expected to cause her alleged symptoms. (Tr. 25). However, he
did not fully credit Vannett’s testimony regarding the intensity, persistence, and limiting effects of
her symptoms, citing: (1) inconsistencies in Vannett’s testimony regarding her computer usage,
social interaction, and sleep disruption; (2) inconsistencies in Vannett’s testimony regarding her
ability to maintain focus and to attend to her personal needs; (3) inconsistencies between Vannett’s
testimony at the administrative hearing and statements attributed to her by treatment providers in
their examination reports; (4) the dearth of evidence demonstrative of her need for mental health
treatment other than periodic medication management; and (5) the results of a psychological
consultative examination conducted on March 5, 2012. (Tr. 29-36).
The ALJ likewise discounted statements made by Vannett’s mother, Renee, in a “Third Party
Function Report” and testimony from Vannett’s boyfriend, Chad Charboneau, regarding Vannet’s
residential functional capacity of because their general lack of expertise in this area and a lack of
supported in the record as a whole. (Tr. 36).

16

The ALJ did, however, credit an opinion expressed by Vannett’s treating gynecologist, Dr.
William Madland, following his examination of Vannett in March 2013. (Id.). In his examination
report, Dr. Madland indicated that Vannet’s medical condition would improve with weight loss.
(Tr. 36-37).
At the fifth step, the ALJ recognized that Vannett was incapable of performing her past
relevant work. (Tr 37-38). The ALJ was nevertheless of the opinion that Vannett was capable of
making an adjustment to other sedentary and unskilled work that exists in significant numbers in
the national economy. (Tr. 38-39). Consequently, ALJ concluded that Vannettt was not disabled
as defined by the Act. (Tr. 39).
II.

GOVERNING LAW
A.

Law governing eligibility for adult benefits

An individual shall be considered to be disabled for purposes of DIB if the person is unable
to engage in any substantial gainful activity by reason of a medically determinable physical or
mental impairment that can be expected to result in death or that has lasted, or can be expected to
last, for a continuous period of not less than twelve months. E.g., Hilkenmeyer v. Barnhart, 380 F.3d
441, 443 (8th Cir. 2004); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
In deciding whether a claimant is disabled within the meaning of the Act, the ALJ is
required to use the five-step sequential evaluation mandated by 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)1 and determine:
(1)

1

whether the claimant is presently engaged in a substantial gainful activity,

The provisions in 20 CFR Part 404 apply to DIB and the provisions in Part 416 apply to SSI benefits.

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(2)

whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities,

(3)

whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations,

(4)

whether the claimant has the residual functional capacity to perform his or
her past relevant work, and

(5)

if the claimant cannot perform the past work, the burden then shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.

If the ALJ reaches the fourth or fifth steps, the ALJ must determine a claimant’s residual
functional capacity (“RFC”), which is what the claimant can do despite his or her limitations. 20
C.F.R. §§ 404.1545, 416.945. The ALJ is required to make the RFC determination based on all
relevant evidence, including, particularly, any observations of treating physicians and the claimant’s
own subjective complaints and descriptions of his or her limitations. Pearsall v. Massanari, 274 F.3d
at 1218.
In evaluating a claimant’s subjective complaints, the ALJ is required to assess the claimant’s
credibility in light of the objective medical evidence and “any evidence relating to: a claimant’s
daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication;
precipitating and aggravating factors, and functional restrictions.” Id. In this circuit, these are
referred to as the “Polaski factors” after the Eighth Circuit’s decision in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984).2 E.g., Ellis v. Barnhart, 392 F.3d 988, 993-996 (8th Cir. 2005) (“Ellis”). A
claimant’s subjective complaints may be discounted only if found to be inconsistent with the record
taken as a whole. Pearsall v. Massanari, 274 F.3d at 1218.
B.
2

Standard of review

The Polaski factors are now embodied in 20 C.F.R. §§ 404.1529, 416.929.

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The scope of this court’s review is limited. The court it is not permitted to conduct a de novo
review. Rather, it must look at the record as a whole to determine whether there is substantial
evidence to support the Commissioner’s decision. Ellis, 392 F.3d at 993.
Substantial evidence is less than a preponderance, but more than a scintilla of evidence. E.g.,
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (“Buckner”). It is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Nelson v. Sullivan, 966
F.2d 363, 366 n.6 (8th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401(1971)).
Under the substantial evidence standard, it is possible for reasonable persons to reach
contrary, inconsistent results. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). Thus, the
standard “embodies a zone of choice within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.” Id. Consequently, the court is required to
affirm a Commissioner’s decision that is supported by substantial evidence - even when the court
would weigh the evidence differently and reach an opposite conclusion. Id.; Buckner, 646 F.3d at
556 (“Rather, if, after reviewing the record, we find that it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner's findings, we
must affirm the decision of the Commissioner.”) (internal quotations and citations omitted).
In conducting its review, the court is required to afford great deference to the ALJ’s
credibility assessments when the ALJ has seriously considered, but for good reason has expressly
discounted, a claimant’s subjective complaints, and those reasons are supported by substantial
evidence based on the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)
(“Haggard”); Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993) (“Brockman”). The Eighth
Circuit has stated, “Our touchstone is that a claimant’s credibility is primarily a matter for the ALJ

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to decide.” Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (“Anderson”).
Nonetheless, the court’s review is more than a search for evidence that would support the
determination of the Commissioner. The court is required to carefully consider the entire record in
deciding whether there is substantial evidence to support the Commissioner’s decision, including
evidence unfavorable to the Commissioner. Ellis, 392 F.3d at 993.
III.

DISCUSSION
A.

RFC Determination

Vannett asserts ALJ failed to adequately consider to her sleep disturbances, asthma, sleep
apnea, obesity and SSR 02-1p, and how her obesity exacerbated her other impairments and
otherwise limited her functioning. Next, she asserts that the her RFC as determined by the ALJ lack
substantial evidentiary support. Finally, she asserts that the ALJ failed to take into consideration
her need for frequent breaks and to elevate her feet has well as the impact of frequent absenteeism
and the inability to complete entire shifts.
The Commissioner disagrees, insisting that the ALJ gave due consideration to all of the
Vannett’s ailments, their impact on her functioning, and whether they prevented her from
performing full time work on a sustained basis. The Commissioner further avers that there was a
dearth of evidence to support Vannett’s assertion that she would require frequent unscheduled
breaks.
SSR 02-1p acknowledges that obesity is a disease, the causes of which are not well
understood. It emphasizes that obesity is not always a mere function of overeating and failing to get
enough exercise and that there may be intervening genetic and metabolic factors that are also
significant. In relevant part it states the following:

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Obesity is a complex, chronic disease characterized by excessive accumulation of
body fat. Obesity is generally the result of a combination of factors (e.g., genetic,
environmental, and behavioral).
In one sense, the cause of obesity is simply that the energy (food) taken in exceeds
the energy expended by the individual's body. However, the influences on intake, the
influences on expenditure, the metabolic processes in between, and the overall
genetic controls are complex and not well understood.
....
Treatment for obesity is often unsuccessful. Even if treatment results in weight loss
at first, weight lost is often regained, despite the efforts of the individual to maintain
the loss.
SSR 02-1p states that obesity can lead to, or complicate, many other diseases and conditions,
including, relevant to this case, chronic diseases involving the musculoskeletal body systems. It also
states that the “effects of obesity may be subtle, such as the loss of mental clarity and slowed
reactions that may result from obesity-related sleep apnea.”
SSR 02-01p sets forth three levels of obesity: Level I includes a body mass index (“BMI”)
of 30.0 - 34.9; Level II a BMI of 35.0 - 39.9; and Level III (also known as “extreme” obesity),
includes BMI’s greater than 40. It further states that “these levels describe the extent of obesity, but
they do not correlate with any specific degree of functional loss.”
In determining a claimant’s residual function capacity, “the ALJ must consider the effects
of the combination of both physical and mental impairments,” Stormo v. Barnhart, 377 F.3d 801,
807 (8th Cir. 2004), to “determine whether the combination of . . . impairments is medically equal
to any listed impairment,” Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003) (quoting 20 C.F.R.
§ 404.1526(a)).
A close reading of the ALJ’s decision confirms that the ALJ did just that; the ALJ
summarized Vannett’s medical records and discussed each of Vannett’s impairments, including
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Vannett’s physical and mental health, obesity, pain complaints, attention deficits, cognitive
functioning, asthma, and sleep disturbances. (Tr. 18-23). For example, the ALJ noted Vannett’s
history of asthma and the fact that she had been prescribed medication for it. (Tr. 20). The ALJ also
took note of Vannett’s admission that she had not diligently taken her medications as well as the
dearth of medical records to suggest that she required ongoing treatment for her asthma. (Id.). With
respect to the issue of Vannett’s weight, the ALJ’s determination appears to have been informed by
SSR 000-3p; ALJ considered the fact that Vannett’s BMI was “extreme” and that her obesity
resulted in functional limitations, exacerbated her other impairments, and otherwise constituted a
severe impairment when assessing Vannett’s residual functional capacity. (Tr. 21, 26-27). As
Vannett’s sleep disruptions, the ALJ concluded they were attributable to preferred sleep habits as
opposed to any medical conditions. (Tr. 34-350. In so doing, the ALJ cited to reports to indicate
that Vannett had been prescribed sleep medication, had established a good sleep pattern and was
getting between 8 and 9 hours of sleep per night as of December 2012, and later experienced
difficulties in getting to sleep at night due in part to the fact that she was sleeping throughout the
day. (Id.).
Consequently, the undersigned concludes that the ALJ properly considered Vanett’s
combined impairments and their impact on her ability when determining Vannett’s residual
functional capacity.
B.

Credibility Determination

Vannnett also takes exception to the ALJ’s credibility determination, asserting that her
subjective complaints are borne out by the record.
Not surprisingly, the Commissioner disputes Vanett’s characterization of the record and

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maintains there was substantial evidence in the record to support the ALJ’s credibility determination.
In so doing, she highlights inconsistencies in the record.
In evaluating a claimant’s subjective complaints, the ALJ is required to assess the claimant’s
credibility in light of the objective medical evidence and “any evidence relating to: a claimant’s
daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication;
precipitating and aggravating factors, and functional restrictions.” Id. In this circuit, these are
referred to as the “Polaski factors” after the Eighth Circuit’s decision in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984). E.g., Ellis v. Barnhart, 392 F.3d 988, 993-996 (8th Cir. 2005) (“Ellis”). A
claimant’s subjective complaints may be discounted only if found to be inconsistent with the record
taken as a whole. Pearsall v. Massanari, 274 F.3d at 1218. The court should, “defer to the ALJ’s
determinations regarding the credibility of testimony, so long as they are supported by good reasons
and substantial evidence.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (quoting Guilliams
v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
The record shows the ALJ considered multiple factors in assessing Vannett’s credibility.
First, the ALJ found that Vannett was prone to overstatement and that her testimony was consistent
with the objective medical evidence in the record. Second, the ALJ took note Vannett’s infrequent
treatment for several of conditions, her violation of a her medication agreement, and the instances
when failed to following her physicians instructions.
Having reviewed the record in its entirety, the court would not necessarily draw the same
conclusions as those of the ALJ. Nevertheless, in the final analysis, the ALJ’s interpretation of the
statements made by Vannett are not beyond the pale and the court is mindful that it is prohibited
from substituting its own judgment in place of the ALJ's interpretation or weigh the evidence de

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novo. See Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998); Flynn v. Chater, 107 F.3d 617,
620 (8th Cir. 1997). As noted above, the ALJ’s credibility assessments are entitled to great
deference when the ALJ has seriously considered, but for good reason has expressly discounted,
a claimant’s subjective complaints, and those reasons are supported by substantial evidence based
on the record as a whole. See Gregg v. Barnhardt, 354 F.3d 710, 714 (8th Cir. 2003) (“If an ALJ
explicitly discredits the claimant’s testimony and gives good reasons for doing so, we will normally
defer to the ALJ’s credibility determination.”) The ALJ gave clear reasons for his credibility
determination and there appears to be sufficient evidence in the record to support them.
C.

Hypotheticals

Vannett asserts that the ALJ failed to ask the vocational expert a hypothetical question
containing all of her limitations and therefore could not rely upon the vocational expert’s testimony
to conclude that she could perform other work that exists in the national economy.
Vannett’s argument presupposes that the ALJ was required to include all of her subjective
limitations in her hypothetical question to the vocational expert. However, as discussed above, the
ALJ did not find Vannett’s subjective complaints entirely credible. A proper hypothetical question
need only include those impairments and limitations found credible by the ALJ. See Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (ALJ’s hypothetical question to the vocational expert
need only include those impairments that the ALJ finds are substantially supported by the record as
a whole); Forte v. Barnhart, 377 F.3d 892, 897 (8th Cir. 2004) (same). Because the ALJ did not
accept all of Plaintiff’s subjective limitations, the ALJ was not required to include them in her
hypothetical question to the vocational expert. Id.
IV.

CONCLUSION
In this case, there is enough evidence supporting the Commissioner’s decision to meet the
24

“substantial evidence” threshold and the decision to deny benefits falls within the zone of choice that
prohibits this court from reversing the decision even though there is substantial evidence supporting
a contrary outcome. Accordingly, Vannett’s Motion for Summary Judgment (Docket No. 10) is
DENIED, the Commissioner’s Motion for Summary Judgment (Docket No. 13) is GRANTED, and
that the above-entitled action is DISMISSED.
IT IS SO ORDERED.
Dated this 31st day of March, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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