Nguyen v. Commissioner of Social Security

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATION overruling 31 Objection to Report and Recommendation; denying 20 Motion for Summary Judgment by Plaintiff; granting 25 Motion for Summary Judgment by defendant and adopting 30 Report and Recommendation. Signed by U.S. District Judge Charles B. Kornmann on 03/13/2014. (SAT)

UNITED STATES DISTRICT COURT

PILED

MAR 13

DISTRICT OF SOUTH DAKOTA

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NORTHERN DIVISION

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MINH-DUNG T. NGUYEN,
Plaintiff,
-vs­
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIV 12-1009

ORDER ADOPTING
REPORT AND RECOMMENDATION

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Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.c.

§ 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for
disability insurance benefits. This matter was referred to United States Magistrate Judge William
D. Gerdes for the purposes of conducting any necessary hearing and issuing a report and
recommendation.
The magistrate filed his Report and Recommendation. Copies of such Report and
Recommendation were served upon the parties as required by 28 U.S.C. § 636. Plaintiff filed
objections. I have conducted a de novo review of the file and the report as required by 28 U.S.C.
§ 636(b)(1). I find that the Commissioner's decision is supported by substantial evidence on the
record as a whole.

BACKGROUND
Plaintiff was born in 1966. She lived and worked in Aberdeen, South Dakota, from 1992
to 1998. She graduated from Northern State University and obtained a master's degree from the
University of Maryland through the Internet. She lived and worked in Florida from 2001 - 2002,
while she was working on her Ph.D. in computer science. She claims she developed
osteoarthritis and claims she was "fired" from the Ph.D. program because she was unable to sit at
a computer. She moved to California in 2005 but returned to Aberdeen after her work hours
were reduced.

Plaintiff filed a disability claim in 2004, which was denied on September 7, 2006. She
filed a second claim in 2008, claiming a disability onset date of September 8, 2006.
Plaintiff s claim was denied on November 6, 2008. Plaintiff filed a request for
reconsideration on December 29,2008. Her claim was denied on reconsideration on February
11,2009, on the following basis:
You state that you are disabled due to osteoarthritis in (sic) limbs, including both
knees, both hands, both elbows, both shoulders as well as the hip and your back.
Although you have pain, it does not severely limit normal daily activities. X-rays
do not show severe damage. There is no indication ofjoint damage which would
result in severe weakness or loss of function. There is no indication of nerve or
muscle damage which would result in severe weakness or loss of function. The
reports do not show any other condition that would severely limit the ability to
work. Considering medical records, age, education and work history, we have
concluded that you are able to do work that doesn't require heavy lifting or
extensive standing or walking.
On April 9, 2009, plaintiff requested a hearing before an ALl. She claimed the
reconsideration denial notice ignored "the lies in the Xray reports." She went into great medical
detail as to why she believed the "normal" x-ray reports were "lies by the Radiologists." She
contended the denial "ignored the severity already included in my medical treatment records."
She outlined in great detail why the medicines prescribed by physicians clearly show that her
degenerative condition was severe, including her assertion that Flonase nasal spray was
prescribed
to relieve the condition of being hard to breathe as a result of swelling of
the glenohumeral joint of the left shoulder which created pressure in the
chest area ... The Flonase prescription can tell that the use of steroid, a
powerful anti-inflammatory medicine, has been already needed since 2006
to reduce swelling of the joints.
She continued to outline in detail how her previous medical history and prescribed medications
showed the severity of the swelling in her joints. Finally, she claimed the denial was in error
because her request for a physical examination at the Social Security Administration's expense
was denied even though such examination would show the now-visible damages of the
osteoarthritis disease.

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A hearing was held on July 16, 2010, before ALJ Robert Maxwell. William Tucker, a
vocational expert, was present. Following the hearing, the ALJ ordered a medical consultive
examination. On October 4,2010, plaintiff was examined by Dr. John Vidoloff. Dr. Vidoloff
reported that plaintiff's physical complaints were not consistent with her presentation. He
ordered x-rays of her shoulders, right wrist and hand and the radiology reports were negative for
any significant degenerative change. Plaintiff requested a supplemental hearing and a
supplemental hearing was held before the ALJ on January 12, 2011. Plaintiff appeared at the
hearing, waived advance written notice of the hearing, and testified that she disagreed with Dr.
Vidoloffs report and that his report was a lie.
Plaintiff sought to subpoena the radiologists who reviewed her x-rays so that she could
cross-examine them about their reports. The ALJ denied the requests. Plaintiff also sought to
introduce the actual x-ray films into evidence to show that the reports were wrong and she did in
fact have a severe impairment. That request was also denied.
The Administrative Law Judge ("ALJ") issued a decision on January 25,2011, denying
plaintiffs claim for disability. Plaintiff filed a request for review of the ALl's decision. She
contended that the ALJ made errors of law as follows:
I. He did not study the definition of terms used in the regulations.
2. Written notice of the date/time of the supplemental hearing was not given in advance.
3. He wrongly refused to subpoena medical doctors/
4. He did not cite the regulation upon which he based his denial of x-ray films as
evidence.
Plaintiff contended that the ALl's findings and conclusions were not supported by substantial
evidence as follows.
1.
2.
3.
4.

The ALJ omitted medical documents that showed the amount ofjoint damage.
The ALJ denied visible physical evidence.
The ALl's evaluation conflicted with Dr. Vidoloffs assessment.
The ALJ falsified records.

The Appeals council denied her request for review on March 6, 2012. The ALJ's decision is thus
deemed the final decision of the Commissioner. Phillips v. Colvin, 721 F.3d 623,625 (8th Cir.
2013). Plaintiff filed the instant appeal in federal district court.

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DECISION

"To be eligible for disability insurance benefits, a claimant has the burden of establishing
the existence of a disability under the Act." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). Judicial review of the Commissioner's decision that claimant has failed to establish by a
preponderance of the evidence that she is disabled within the meaning of the Social Security Act
is limited to determining whether the Commissioner's decision is supported by substantial
evidence in the record as a whole. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion." Kamann v. Colvin, 721 F.3d at 950 (quoting
Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir.l998)). "We consider both evidence that detracts
from the ALl's decision, as well as evidence that supports it, but we will not reverse simply
because some evidence supports a conclusion other than that reached by the ALl" McDade v.
Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (internal citations omitted). "If, after reviewing the
record, the court finds it is possible to draw two inconsistent positions from the evidence and one
ofthose positions represents the [ALJ's] findings, the court must affirm the [ALJ's] decision."
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
The ALJ used the familiar five-step sequential evaluation to determine disability:
In step one, the ALJ decides whether the claimant is currently engaging in
substantial gainful activity; if the claimant is working, he is not eligible for
disability insurance benefits. In step two, the ALJ determines whether the
claimant is suffering from a severe impairment. If the claimant is not suffering a
severe impairment, he is not eligible for disability insurance benefits. At the third
step, the ALJ evaluates whether the claimant's impairment meets or equals one of
the impairments listed in Appendix 1 of the regulations (the "listings"). If the
claimant's impairment meets or equals one of the listed impairments, he is entitled
to benefits; if not, the ALJ proceeds to step four. At step four, the ALJ determines
whether the claimant retains the "residual functional capacity" (RFC) to perform
his or her past relevant work. If the claimant remains able to perform that past
relevant work, he is not entitled to disability insurance benefits. If he is not
capable of performing past relevant work, the ALJ proceeds to step five and
considers whether there exist work opportunities in the national economy that the
claimant can perform given his or her medical impairments, age, education, past
work experience, and RFC. If the Commissioner demonstrates that such work
exists, the claimant is not entitled to disability insurance benefits.

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McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal C.F.R. citations omitted).
Plaintiff must be "disabled" to qualify for benefits under the Social Security Act. Martise
v. Astrue, 641 F.3d 909, 921 (8th Cir. 2011). "The Act considers an individual 'disabled' 'if
[s]he is unable 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 twelve months.' 42
U.S.c. § 1382c(a)(3)(A)." Martise v. Astrue, 641 F.3d at 921. The ALl determined that
plaintiff has arthritis, including degenerative joint disease of her hip and knees, that the
impairment is severe, and that the impairment more than minimally interferes with her ability to
work. The ALl rejected any claim that plaintiff's complaints of hemorrhoids, constipation,
vomiting, dizziness, and pain interfered with her ability to work for a full consecutive 12 month
period. The ALl determined that plaintiff's impairment, singly or in combination with any other
impairments, does not meet the requirements of any listed impairment.
Plaintiff's first objection to the disability determination process has been that the
Commissioner relied upon x-ray reports and refused to consider the actual x-ray films as
evidence of disability. Plaintiff claims the x-ray reports on x-rays taken between 2006 and 2010,
together with her testimony concerning her limitations, "are obvious evidence against lies in the
Xray reports." She contends that she has conducted a detailed viewing of the films based upon
documents form the National Institute of Arthritis and Musculoskeletal and Skin Diseases and
the Academy of Orthopedic Surgeons and is competent to testify that the films show "bone
touching bone" and are evidence of osteoarthritis. She sought to subpoena the radiologists that
issued the reports to question them about the actual films and prove that their reports of "normal"
were lies. Plaintiff is not trained in radiology and it was not error for the ALl to refuse her an
opportunity to present her "expert" opinion as to what the films show.
Plaintiff contends the ALl erred when he refused to issue subpoenas to the radiologists
who issued reports interpreting her x-rays. The ALl denied her request for subpoenas pursuant to
20 C.F.R. § 404.950(d)(1). It was not error to refuse her requests to subpoena the radiologists
who issued the reports showing that her x -rays were normal. These reports were generated
during the course of her treatment by her own treating physicians and were not generated as part
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of her application for disability benefits. That the reports were adverse to plaintifffs claim does
not prevent the ALJ from relying upon the reports. Richardson v. Perales, 402 U.S. 389,404,91
S.Ct. 1420, 1428,28 L.Ed.2d 842 (1971). Plaintiff had no absolute right to cross-examine her
own treating physicians. Passmore v. Astrue, 533 F.3d 658, 662 (8th Cir. 2008). The ALJ was
within his discretion to deny plaintiff the opportunity to cross-examine her own physicians. The
reports, along with all the other evidence received at the hearing, were properly received pursuant
to 42 U.S.C. § 405(b)(1).
Plaintiff sought medical treatment for dizziness, constipation, hemorrhoids, and vomiting.
She claims these are symptoms that show she does in fact have degenerative disease in her spine
and joints. She also sought treatment complaining of swelling, difficulty moving her joints, and
pain. She was occasionally prescribed medications to treat these maladies. Medical records
show that in 2004 - 2007, she was seen on different occasions and diagnosed with low back pain,
swelling of the upper back, osteoarthritis of the hands, stiffness and pain in the shoulder, and
joint damage. She was at one time referred for physical therapy and prescribed a knee brace.
However, none of her medical records show that the conditions were ongoing or rose to the level
of disabling. None of plaintiffs treating physicians issued any opinion that she was disabled or
that any of her medical complaints interfered with her ability to work.
In 2004, Dr. Steven Redmond issued a report to Disability Determination Services
finding that plaintiff has "chronic low back pain and chronic knee pain that comes and goes." He
found, based upon his examination, that she could lift and carry thirty pounds frequently, had no
limitations on standing or walking, would need breaks during an eight hour day from sitting after
two hours, and should avoid climbing and kneeling. On November 6, 2008, Dr. Kevin Whittle
completed a residual functional capacities assessment wherein he set forth her claimed
symptoms, noted that she had arthritis and degenerative joint disease in the hips and knees but
noted that plaintiff's "subjective complaints [are] out of proportion to objective medical
evidence. "
The ALJ found the plaintiff s claims regarding the extent of her limitations to not be
credible.

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Although an ALJ may reject a claimant's subjective allegations of pain
and limitation, in doing so the ALJ "must make an express credibility
determination detailing the reasons for discrediting the testimony, must set
forth the inconsistencies, and must discuss the Polaski factors." Kelley v.
Callahan, 133 FJd 583, 588 (8th Cir.1998).
Burress v. Apfel, 141 FJd 875, 880-81 (8th Cir. 1998). "Polaski requires the ALJ to consider:
(1) the claimant's daily activities; (2) the duration, frequency and intensity of pain; (3) dosage,

effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5)
functional restrictions. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir.1996) citing Hall v.

Chater, 62 F.3d 220, 223 (8th Cir.1995)." Burress v. Apfel, 141 F.3d at 881 n. 10. The ALl
"may not disregard a claimant's subjective complaints solely because the objective medical
evidence does not fully support them." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The absence of an objective medical basis which supports the degree of
severity of subjective complaints alleged is just one factor to be considered
in evaluating the credibility of the testimony and complaints ... The
adjudicator is not free to accept or reject the claimant's subjective
complaints solely on the basis of personal observations. Subjective
complaints may be discounted if there are inconsistencies in the evidence as
a whole.
Id. "The ALJ [is] not required to discuss methodically each Polaski consideration, so long as he
acknowledge[s] and examine[s] those considerations before discounting [the claimant's] sUbjective
complaints." McDade v. Astrue, 720 F.3d at 998 (quoting Lowe v. Apfel, 226 F.3d 969, 972 (8th
Cir. 2000)).
The ALl did consider the foregoing, although not by specifically naming the Polaski
factors. Under Polaski, the ALl "may not disregard a claimant's subjective complaints solely
because the objective medical evidence does not fully support them." Polaski v. Heckler, 739 F.2d
at 1332. In the present case, the objective medical evidence does not support the plaintiffs
subjective complaints "at all." "While pain may be disabling if it precludes a claimant from
engaging in any form of substantial gainful activity, the mere fact that working may cause pain or
discomfort does not mandate a finding of disability." Perkins v. Astrue, 648 FJd 892, 900 (8th
Cir. 2011) (quoting Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)).
Plaintiff claims the ALJ erred in rejecting her claimed functional limitations. "It is the
claimant's burden, and not the Social Security Commissioner's burden, to prove the claimant's

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[residual functional capacity]." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The
ALl detennines a claimant's functional capacity "based on all relevant evidence, including
medical records, observations of treating physicians and others, and claimant's own descriptions
of [her] limitations." Id.
Plaintiff contends that the ALl failed to even consider that in 2002, as part of her
worker's compensation claim, she was restricted from kneeling, climbing, and squatting (in her
request for a supplemental hearing she denied that she had filed a worker's compensation claim
but only had a medical exam). She also contends that the ALl failed to consider the ALl's 2006
detennination in denying her first request for disability benefits that she suffered from pain and
was restricted from overhead reaching. Those matters are not part of the record. In any event,
the ALl in this matter referred plaintiff for a current medical examination and considered current
functional capacities assessments, upon which he properly relied. Plaintiff s claimed functional
limitations were properly rejected by the ALl.
Ultimately, plaintiff "bears the burden of proving disability and providing medical
evidence as to the existence and severity of an impainnent." Kamann v. Colvin, 721 F.3d at 950.
She did not satisfy her burden. As is true in most disability claims, plaintiff is experiencing
medical issues that cause her pain and difficulty. The issue is, however, whether her medical
condition prevents her from working. The ALl detennined that her condition is not disabling
within the meaning of the Social Security Act. The decision of the ALl is supported by
substantial evidence on the record as a whole.
CONCLUSION
I find that the Commissioner's decision is supported by substantial evidence on the record
as a whole. Accordingly,
IT IS ORDERED:
1) The Report and Recommendations of the U.S. Magistrate ludge (Doc. 30) is accepted
and adopted.
2) The motion (Doc. 18) and the amended motion of the plaintiff (Doc. 20) for summary
judgment or remand are denied.
3) The motion of the Commissioner (Doc. 25) for summary judgment is granted.
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4) The objections of the plaintiff (Doc. 31) to the magistrate's Report and
Recommendation are overruled.
5) The final administrative decision to the effect that the claimant is not eligible for
benefits under the Social Security Act is affirmed.
Dated this 13+'\iay of March, 2014.
BY THE COURT:

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ATTEST:

JOSEPH HAAS, CLERK

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CHARLES B. KORNMANN
United States District Judge

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(SEA

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