Kienast v. Astrue
Filing
13
ORDER denying 9 Motion to Reverse; granting 11 Motion to Affirm. Signed by Chief Judge Jeffrey L. Viken on 3/13/13. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
WALLACE E. KIENAST,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
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CIV. 11-5077-JLV
ORDER AFFIRMING
DECISION OF THE
COMMISSIONER
INTRODUCTION
Plaintiff Wallace E. Kienast filed a complaint appealing from an
administrative law judge’s (ALJ) decision denying disability benefits.
(Docket 1). Defendant1 denies plaintiff is entitled to benefits. (Docket 6).
The court issued a briefing schedule requiring the parties to file a joint
statement of material facts (“JSMF”). (Docket 7). The parties filed their
JSMF. (Docket 8). For the reasons stated below, plaintiff’s motion to
reverse the decision of the Commissioner (Docket 9) is denied and the
defendant’ s motion to affirm the ALJ’s decision (Docket 11) is granted.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Ms. Colvin is
automatically substituted for Michael J. Astrue as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 8) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
On August 1, 2005, Mr. Kienast filed an application for disability
insurance benefits asserting a disability date of March 15, 2004. Id. at ¶ 1.
On March 1, 2007, the ALJ issued a decision finding that Mr. Kienast was
not disabled (the “2007 ALJ decision”). Id. at ¶ 2. On December 19, 2008,
the Appeals Council vacated the ALJ’s decision and remanded the case for
further proceedings. Id. at ¶ 4. Following a second hearing, the ALJ issued
a written decision dated April 23, 2010, that Mr. Kienast was not disabled
during the pertinent time period. Id. at ¶ 5. The Appeals Council denied
Mr. Kienast’s review request. Id. at ¶ 7. The ALJ’s decision constitutes the
final decision of the Commissioner of the Social Security Administration. Id.
It is from this decision which Mr. Kienast timely appeals.
The issue before the court is whether the ALJ’s decision of April 23,
2010, (the “2010 ALJ decision”) “that Kienast was not under a disability . . .
from March 15, 2004, . . . through December 31, 2009 . . . .” is supported
by the substantial evidence on the record as a whole. Id. at ¶ 5 (internal
quotation marks omitted); see also Howard v. Massanari, 255 F.3d 577, 580
(8th Cir. 2001) (“By statute, the findings of the Commissioner of Social
2
Security as to any fact, if supported by substantial evidence, shall be
conclusive.”) (internal quotation marks and brackets omitted) (citing
42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law
was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal
citation and quotation marks omitted).
The review of a decision to deny disability benefits is “more than an
examination of the record for the existence of substantial evidence in
support of the Commissioner’s decision . . . [the court must also] take into
account whatever in the record fairly detracts from that decision.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
3
Commissioner’s decision if that decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an
opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
DISCUSSION
The 2010 ALJ decision should be examined in the context of the
Appeals Council’s remand decision. The basis for the Appeals Council’s
decision is summarized as follows:
1.
The ALJ failed to define what was meant by the
term “limited” as applied to “near and far acuity,
depth perception, accommodation, color vision and
field of vision, and . . . it was not clear that Kienast
can perform his past relevant work as a multi-lines
claims adjuster . . . .”;
2.
Mr. Kienast was unable to “perform his past
relevant work as a mutli-lines claims adjuster as
. . . that job required lifting up to 45 pounds and
the ALJ had limited Kienast to light work . . . lifting
no more than 20 pounds at a time. . . .”; and
3.
The ALJ failed to “identity work skills that Kienast
had acquired [or] the jobs to which those skills
transfer . . . .”
(Docket 8 at ¶ 4). To the extent Mr. Kienast chose not to challenge the 2010
ALJ decision for failing to specifically address these three issues, those
challenges are waived. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999)
4
(“[F]ailure to raise the argument at the agency level ‘ordinarily prevents a
party from raising it in judicial proceeding.’ ”) (citing Weikert v. Sullivan,
977 F.2d 1249, 1254 (8th Cir. 1992) (bracketing omitted); Harwood v. Apfel,
186 F.3d 1039, 1043 (8th Cir. 1999) (an issue not raised with the Appeals
Council not reviewable in district court). To the extent Mr. Kienast argues
the 2010 ALJ decision failed to address the physical components presented
in the record, the court will resolve those challenges.
Mr. Kienast challenges the 2010 ALJ decision on two principal
grounds, which are summarized as follows:
1.
Plaintiff’s subjective complaints of pain and
functional limitations were improperly discredited;
and
2.
The finding as to plaintiff’s residual functional
capacity (“RFC”) is erroneous as a matter of law and
is not supported by substantial evidence.
(Docket 10 at pp. 3 & 14). Each challenge will be addressed separately.
1.
PLAINTIFF’S SUBJECTIVE COMPLAINTS OF PAIN AND
FUNCTIONAL LIMITATIONS WERE IMPROPERLY
DISCREDITED
A.
PAIN
The ALJ concluded Mr. Kienast’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are
5
inconsistent with the . . . [RFC] assessment.” (Administrative Record at p.
21) (“AR at p. ____”). When analyzing a claimant’s subjective complaints of
pain, the ALJ must examine:
1.
the claimant’s daily activities;
2.
the duration, frequency and intensity of the pain;
3.
precipitating and aggravating factors;
4.
the dosage, effectiveness and side effects of
medication; and
5.
functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ may
properly discount the claimant’s testimony where it is inconsistent with the
record. Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004). “[T]he
ALJ cannot simply invoke Polaski or discredit the claims because they are
not fully supported by medical evidence. . . . Instead, the ALJ must make an
express credibility determination that explains, based on the record as a
whole, why the claims were found to be not credible.” Dukes v. Barnhart,
436 F.3d 923, 928 (8th Cir. 2006) (internal citation omitted).
Mr. Kienast argues the ALJ did not properly analyze his subjective
complaints of pain under the Polaski factors. (Docket 10 at p. 5). However,
the ALJ is not required to cite to Polaski. Rather, the ALJ may “cite the
proper regulations and . . . correctly list[] the relevant facts that should be
6
considered in assessing the credibility of claimant’s subjective complaints
[of pain].” Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001).
The 2010 ALJ decision specifically addressed the pain evidence
regulations. “To be disabling, pain must be so severe, by itself or in
conjunction with other impairments, as to preclude any substantial gainful
activity.” (AR at p. 21) (referencing 20 CFR §§ 404.1529 and 416.929 and
SSR 96-7p). “In determining whether you are disabled, we consider all your
symptoms, including pain, and the extent to which your symptoms can
reasonably be accepted as consistent with the objective medical evidence
and other evidence.” 20 CFR § 404.1529(a). “Other evidence” is defined as:
statements or reports from you, your treating or nontreating
[physicians], and others about your medical history, diagnosis,
prescribed treatment, daily activities, efforts to work, and any
other evidence showing how your impairment(s) and any related
symptoms affect your ability to work. We will consider all of your
statements about your symptoms, such as pain, and any
description you, your treating . . . or nontreating [physicians], or
other persons may provide about how the symptoms affect your
activities of daily living and your ability to work.
Id. (internal citations omitted). “In evaluating the intensity and persistence
of your symptoms, including pain, we will consider all of the available
evidence, including your medical history, the medical signs and laboratory
findings and statements about how your symptoms affect you.” Id.
To evaluate the intensity and persistence of a claimant’s pain, the ALJ
is required to consider:
7
(i)
[Claimant’s] daily activities;
(ii)
The location, duration, frequency, and intensity of
[claimant’s] pain or other symptoms;
(iii)
Precipitating and aggravating factors;
(iv)
The type, dosage, effectiveness, and side effects of any
medication [claimant] take[s] . . . to alleviate . . . pain
or other symptoms;
(v)
Treatment, other than medication, [claimant]
receive[s] . . . for relief of . . . pain or other symptoms;
(vi)
Any measures [claimant] use[s] . . . to relieve . . . pain
or other symptoms . . . ; and
(vii)
Other factors concerning [claimant’s] functional
limitations and restrictions due to pain or other
symptoms.
Id. at § 404.1529(c)(3); see also 20 CFR § 416.929 (same factors) (the “CFR
factors”). The CFR factors “largely mirror the Polaski factors.” Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
While inartfully stated and not organized clearly, the ALJ touched
upon each of the CFR factors.
(i)
The claimant drives and does most of the grocery
shopping. . . . [can] walk about one mile at one time.
. . . can stand for 10-15 minutes and sit for 30 to 45
minutes at one time. . . . [can] lift about 15 to 20
pounds. . . . is able to take care of all of his personal
needs. . . . checks the email and returns phone . . . .
and spends some more time on the computer or on
the phone. (AR at pp. 21 & 22);
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(ii)
The claimant testified that his neck pain is constant
and can reach as high as a 10 on a scale of 0-10
. . . . (AR at p. 21);
(iii)
In spite of his allegations of disabling neck pain, he
would still ride an ATV 2 to 3 times a month for about
an hour each time. Id.;
(iv)
In spite of . . . intense pain, he does not use pain
medications. . . . no prescription pain medication2
. . . . Id.;
(v)
The claimant stated that . . . the food science
supplement allowed him to eliminate medication
. . . . no restrictions recommended by the treating
doctor
. . . . his announced limits far exceed those
given to him by his own treating physicians. (AR at
pp. 21 & 22);
(vi)
[C]laimant . . . has periodic rest periods during the
day. . . . will lie down or use the recliner for about
1/2 hour to an hour at a time. (AR at p. 21);
(vii)
[C]laimant [completed] a Physical Work Performance
Evaluation (“PWPE”) . . . participated fully in 20 of 20
tasks and demonstrated self-limiting participation by
stopping on 0 out of 20 tasks. . . . the 3 1/2 hour
evaluation was done without added rest period(s)
. . . . Dr. Lawlor . . . put [him] at a maximum lift limit
of 35 pounds, . . . no upper extremity overhead
activity, . . . needs to change position from sitting to
standing and walking every 45 minutes as necessary
. . . and the claimant himself also concurred with
2
Mr. Kienast argues the ALJ failed to recognize he avoided drugs because of
a prior prescription drug addiction. (Docket 10 at p. 6). However, the record
discloses Mr. Kienast was prescribed and took Relafen and Flexeril, in January
2004, and then in September 2005, Dr. Lawlor discussed optemizing Mr.
Kienast’s medications, without objection or comment by Mr. Kienast. (Docket 8
at ¶¶ 9, 12 & 24). Mr. Kienast also requested and obtained a prescription of
Viagra, with refills over the course of at least two years. (AR at p. 18).
9
these opined limitations. . . . [claims it is hard to use
his computer, but] generates almost $20,000.00 in
annual sales from his online business . . . . (AR at pp.
22 & 23).
“The ALJ is in the best position to determine the credibility of the
testimony and is granted deference in that regard.” Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001) (referencing Polaski). “Where adequately
explained and supported, credibility findings are for the ALJ to make.” Lowe
v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000).
The ALJ properly cited to the Social Security regulations and then
evaluated the testimony in light of those regulations. The court must “defer
to an ALJ’s credibility finding as long as the ALJ explicitly discredits a
claimant’s testimony and gives a good reason for doing so.” Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal quotation marks and
citations omitted).
Mr. Kienast also challenges the ALJ’s analysis of the daily activities
described in the record. (Docket 10 at p. 9). Mr. Kienast argues his daily
activities “are not inconsistent with [his] testimony that he is unable to be
functional for an entire 8-hour workday.” Id. One of the steps in the ALJ’s
analysis of pain intensity was to look at Mr. Kienast’s daily activities in
relationship to his pain and the issue of Mr. Kienast’s credibility on pain.
Mr. Kienast “testified that his neck pain is constant and can reach as high
as a 10 on a scale of 0-10.” (AR at p. 21).
10
Notwithstanding that testimony, Mr. Kienast describes still being able
to engage in the following activities of daily living:
[Mr. Kienast] would . . . ride an ATV 2 to 3 times a month for
about an hour each time . . . . [he] drives and does most of the
grocery shopping. . . . [Mr. Kienast] estimated that he could walk
about one mile at one time. He can stand for 10-15 minutes and
sit for 30 to 45 minutes at one time. He thought he could lift
about 15 to 20 pounds. [Mr. Kienast] is able to take care of all of
his personal needs. After showering and shaving, he reads his
daily devotions and picks up around the house. He checks the
email and returns phone calls. He prepares his lunch and spends
some more time on the computer or on the phone.
(AR at pp. 21-22). The regulations mandate the ALJ look at the comparison
between the claimant’s assertion of pain intensity and his activities of daily
living. 20 CFR § 404.1529(c)(3)(i). The ALJ did not reject totally Mr.
Kienast’s testimony regarding pain intensity, but rather the ALJ chose to
conclude the activities of daily living were inconsistent with the pain
intensity claimed. “The claimant’s daily living activities are inconsistent
with his assertions of neck pain. Further, his announced limits far exceed
those given to him by his own treating physicians. . . . given the claimant’s
allegations of totally disabling symptoms, one might expect to see some
indication in the treatment records of restrictions placed on the claimant by
the treating doctor. Yet a review of the record in this case reveals no
restrictions recommended by the treating doctor.” (AR at p. 22). The ALJ
then gave Mr. Kienast’s testimony less weight “concerning the intensity,
persistence and limiting effect of these symptoms . . . .” Id. at p. 21.
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Again, the court must “defer to an ALJ’s credibility finding as long as
the ALJ explicitly discredits a claimant’s testimony and gives a good reason
for doing so.” Schultz, 479 F.3d at 983 (internal quotation marks and
citations omitted). The ALJ’s credibility determination as to plaintiff’s pain
stands and Mr. Kienast’s challenge to the 2010 ALJ decision on this ground
is denied.
B.
DOMINANT HAND TREMORS
Mr. Kienast argues “[t]he ALJ . . . failed to consider Kienast’s
allegations of a severe tremor in his right dominant hand.” (Docket 10 at p.
10). Mr. Kienast submits the record supports his claim regarding the
severity of his dominant hand tremors. Id. (citing Docket 6 at ¶¶ 30, 38 &
50).
The ALJ noted Mr. Kienast’s allegations of disability because of “right
arm numbness and shaky [sic] . . . .” (AR at p. 16). “Dr. Stuart Fromm of
Black Hills Orthopedic and Spine Center. . . . noted that the EMG was
consistent with significant cubital tunnel syndrome.” Id. at p. 19. Mr.
Kienast “was scheduled for . . . an ulnar nerve transposition of the right
elbow . . . . This surgery was done by Dr. Fromm on May 18, 2006.” Id. at
pp. 19-20. The next week, Mr. Kienast’s “right elbow appeared to be
healing.” Id. at p. 20. “On May 31, 2006, [Mr. Kienast] had full range of
motion of his right elbow and his hand was neurovacularly intact . . . .” Id.
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“By June 28, 2006, [Mr. Kienast] had no complaints regarding his right
elbow.” Id. “Dr. Fromm reported that Kienast was having minimal pain in
his right elbow and the numbness in the right hand was getting better.”
(Docket 8 at ¶ 34). “Kienast testified that surgery on the right arm in May
2006, had cured the numbness in his right hand but it did not help
shakiness.” Id. at ¶ 38. Later examinations by Dr. Fromm made no
mention of Mr. Kienast’s right hand issues. See id. at ¶¶ 42-44. To the
contrary, neurosurgeon Dr. Edward Seljeskog reported on March 2, 2010,
Mr. Kienast’s “arms and legs had good strength (5/5), normal tone, and full
range of motion . . .” Id. at ¶ 46. This is the last medical reference to Mr.
Kienast’s right hand.
As mentioned above, the ALJ found Mr. Kienast’s “medically
determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible
. . . .” (AR at p. 21). Whether this determination included Mr. Kienast’s
complaints regarding his right hand tremors is not clear, however, Dr.
Seljeskog’s final report of March 2010 is inconsistent with Mr. Kienast’s
complaints.
The court finds no good reason to remand the case to the ALJ for a
clarification of this functional symptom claim in light of Dr. Seljeskog’s
13
report. Mr. Kienast’s challenge to the 2010 ALJ decision on this ground is
denied.
C.
THIRD PARTY STATEMENTS
Mr. Kienast argues the ALJ “failed to consider third party
observations as to the disabling effect of [his] medical conditions.” (Docket
10 at p. 12). Plaintiff represents the record “contains seven written
statements from Kienast’s friends and relatives describing, in varying detail,
Kienast’s impairments and limitations.” Id. None of these statements were
incorporated into the JSMF. See Docket 8.
The briefing schedule issued by the court directed plaintiff to “serve
on defendant, but not file, a proposed Joint Statement of Material Facts.”
(Docket 7 at ¶ 1(a)). The JSMF was to “describe all facts pertinent to the
decision of the case . . . .” Id. “If there are disputed facts [file]. . . a separate
Joint Statement of Disputed Facts identifying the party who proposes
inclusion of each disputed fact and the record support for each proposed
inclusion.” Id. at ¶ 1(d). Plaintiff did not file a separate document including
the seven statements of third parties.
The failure of a party to comply with the court’s order constitutes a
waiver of that argument. Riggins, 177 F.3d at 693; Harwood v. Apfel, 186
F.3d at 1043; Medincine Shoppe International, Inc. v. Simmonds, No.
4:08CV90 FRB, 2009 WL 982701 at *2 (E.D. Mo. Apr. 13, 2009) (“In light of
14
the Court’s specific direction that plaintiff act in accordance with [a local
rule], the Court determines that plaintiff’s failure to do so constitutes a
waiver . . . .”).
Notwithstanding that ruling, the court finds Mr. Kienast’s argument
without merit. As Mr. Kienast notes in his brief, the ALJ noted, “The
claimant has reviewed the letters and statements from the claimant’s wife
. . . , son . . . , daughter . . . , church council . . . , and friends . . . .” (AR at
p. 21) (citations to administrative record omitted). It appears the ALJ made
a typographical error when stating “claimant has reviewed
. . .” as it
would be more appropriate for the ALJ to report the “ALJ has reviewed . . . .”
Mr. Kienast cites to Willcockson v. Astrue, 540 F.3d 878, 880-81 (8th
Cir. 2007) in support his argument. (Docket 10 at p. 13). However,
Willcockson has more to say on the question of third-party statements than
submitted by plaintiff. “[F]ailure to [explain why evidence from lay persons
was rejected] does not always result in a remand. . . . we have sometimes
concluded that third-party evidence supporting a claimant’s complaints was
the same as evidence that the ALJ rejected for reasons specified in the
opinion. In such circumstances, we have refused to remand based on an
‘arguable deficiency in opinion-writing technique’ that had no effect on the
outcome of the case. . . .” Id. at 880 (internal citations omitted). Where “the
decision of the ALJ made it clear that the ALJ had discredited the third-
15
party statements, though it did not explain why” remand is not necessary.
Id. (referencing Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)).
In the present case, it is clear the ALJ reviewed the third-party
statements. Those statements which plaintiff incorporates into his brief
bring forth the same general description of Mr. Kienast as noted by the ALJ.
“The claimant used to golf, fish, hunt, and do yard work projects. The
claimant asserted that he has periodic rest periods during the day. He will
lie down or use the recliner for about 1/2 hour to an hour at a time.” (AR at
p. 21). The court finds the ALJ may have not used the best “opinion-writing
technique” but he considered the third-party statements and gave them
some weight. Willcockson, 540 F.3d at 880. The court will not remand this
case “based on an arguable deficiency in opinion-writing technique that had
no effect on the outcome of the case.” Id. (internal quotation marks and
citation omitted).
Mr. Kienast’s challenge to the 2010 ALJ decision on this ground is
denied.
2.
THE FINDING AS TO PLAINTIFF’S RESIDUAL FUNCTIONAL
CAPACITY IS ERRONEOUS AS A MATTER OF LAW AND IS
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Mr. Kienast argues the ALJ’s conclusion regarding RFC “is erroneous
as a matter of law and not supported by substantial evidence” for a number
of reasons. (Docket 10 at p. 15). Those arguments are:
16
A.
[T]he RFC finding contains no limitation based on
Kienast’s left eye blindness. Id.;
B.
[T]he ALJ’s finding as to . . . RFC erroneously fails
to include any manipulative restrictions. Id. at p.
17; and
C.
[T]he ALJ’s RFC finding erroneously assumes
Kienast is functional for an entire 8-hour workday.
Id. at p. 18.
Each of these arguments will be addressed separately.
A.
THE RFC FINDING CONTAINS NO LIMITATION BASED ON
KIENAST’S LEFT EYE BLINDNESS
Plaintiff argues the ALJ found “[Mr.] Kienast has the ‘severe’
impairment of ‘blindness in the left eye’ . . . .” (Docket 10 at p. 16). Under
the Social Security Act, plaintiff argues “[a]n impairment is only ‘severe’ . . .
if it ‘significantly’ limits a claimant’s ability ‘to do basic work activities.’ ” Id.
(citing 20 CFR § 404.1521(a)). Thus, plaintiff argues “[i]t must be selfevident that if an impairment ‘significantly’ limits a claimant’s ability ‘to do
basic work activities,’ restrictions exist which must be included in . . .
claimant’s [RFC].” Id. at pp. 15-16.
Mr. Kienast has “had problems seeing with his left eye since early
childhood.” (Docket 8 at ¶ 45). According to plaintiff’s opthamologist, Dr.
Slingsby, Mr. Kienast is able to discern “hand motion” with his left eye. Id.
During his December 1, 2009, examination Mr. Kienast reported he felt his
“left eye was ‘doing good.’ ” Id.
17
During the second administrative hearing in 2010, Mr. Kienast
testified that his left eye vision “was limited to seeing just light and maybe
some shapes out of the very left hand corner of his eye . . . . this vision loss
greatly affected his depth perception as far as reading, writing, and reaching
for things.” Id. at ¶ 48. “When he tried to shake someone’s hand he would
sometimes miss the hand because he reached either too high or too low.”
Id. “[W]hen he poured a glass of water he would sometimes overshoot or
undershoot it because he would lose depth perception.” Id. When trying to
pick up an object, “he would miss the object and he had to be very slow and
deliberate.” Id.
During the 2005 PWPE, which lasted approximately 3 1/2 hours, Mr.
Kienast never complained his vision impaired his ability to complete the
test. See AR at p. 22; Docket 8 at ¶ 25. Nor did Mr. Kienast testify his
vision was one of the reasons he could no longer work as a warehouse and
delivery person or as an insurance claims adjuster in his own business. Id.
at ¶ 54.
The ALJ found Mr. Kienast’s RFC included being “blind in the left eye
and has 20/35 visual acuity in the right eye and has no difficulty reading a
computer screen.” (AR at p. 20). Like Mr. Kienast’s claim of pain severity,
the ALJ is entitled to give less weight to the claimant’s visual impairment
18
claims when those complaints are not consistent with the substantial
evidence in the record. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869.
In the 2010 ALJ decision, it was noted Mr. Kienast was “blind in the
left eye, however he has had this impairment since childhood which
did not prevent the claimant from engaging in SGA-level work,3 and the fact
such did not prevent the claimant from working at that time strongly
suggests that it would not currently prevent work.” (AR at p. 21). The ALJ
noted “the record reflects work activity after the alleged onset date, and in
fact the claimant continues to perform such self-employment, and while this
work activity does not presumptively indicate substantial gainful activity,
such work activity does not enhance his credibility in this matter, and in
fact suggests a capacity for significant functioning.” Id. The ALJ further
noted Mr. Kienast’s testimony “that it was hard for him to use the computer
due to his lack of depth perception.” Id. at p. 22. “However, . . . claimant’s
medical records refer to this eye surgery (and presumed loss of vision) for
well over 30 years. The claimant has been able to work extensively and
qualify to operate a motor vehicle even with his vision loss for all of those
years.” Id.
The ALJ properly considered and weighed the available evidence and
Mr. Kienast’s testimony. His argument the ALJ’s RFC is not supported by
3
Substantial gainful activity. 20 CFR § 416.920(b).
19
any medical evidence is without merit. Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (claimant “fails to recognize that the ALJ’s determination
regarding [his] RFC was influenced by [the ALJ’s] determination that
[claimant’s] allegations were not credible.”). “Moreover, the ALJ was not
obligated to include limitations from opinions he properly disregarded.” Id.
Accepting Mr. Kienast’s testimony and incorporating the ALJ’s RFC,
the vocational expert, Mr. Gravatt, concluded “if Kienast could read a
computer screen, his lack of depth perception was not sufficiently severe so
as to preclude work as a claims adjuster or as a customer representative.”
(Docket 8 at ¶ 55). The ALJ adopted Mr. Gravatt’s assessment. (AR at p.
23).
Mr. Kienast’s credible visual impairments were properly considered by
the ALJ and were included in the final RFC. The court finds substantial
evidence in this record which a reasonable mind might accept as adequate
to support the Commissioner’s decision on Mr. Kienast’s visual impairment
claim. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869.
Mr. Kienast’s challenge to the 2010 ALJ decision on this ground is
denied.
B.
THE ALJ’S FINDING AS TO RFC ERRONEOUSLY FAILS TO
INCLUDE ANY MANIPULATIVE RESTRICTIONS
Mr. Kienast objects to the final RFC because it “erroneously fails to
include any manipulative restrictions.” (Docket 10 at p. 17). The ALJ noted
20
Mr. Kienast’s allegation of being disabled because of “right arm numbness
and shaky [sic] . . . .” (AR at p. 16). Mr. Kienast’s testimony described his
perception of the consequences of his dominant hand tremors. See Docket
8 at ¶¶ 38 & 50. Following the transposition surgery recommended by Dr.
Fromm, see id. at ¶ 30, there is no medical evidence describing Mr.
Kienast’s hand tremors existing to the extent outlined in his testimony.
“Regarding the right upper extremity, Kienast was having minimal pain but
the numbness had not yet changed. . . [he] had a full range of motion in his
elbow.” Id. at ¶ 33. “Dr. Fromm reported that Kienast was having minimal
pain in his right elbow and that the numbness in the right hand was getting
better
. . . .” Id. at ¶ 34. “On January 28, 2008, Dr. Fromm reported that Kienast
was doing very well and was pleased with the results of his knee
replacement surgery . . . .” Id. at ¶ 44. While the focus of this appointment
was certainly Mr. Kienast’s total knee replacement, one would reasonably
expect that if Mr. Kienast remained concerned about his dominant hand
tremors, he would have discussed the issue with Dr. Fromm. The same
conclusion can be drawn from Mr. Kienast’s subsequent clinic visits with
Dr. Seljeskog. See id. at ¶ 46.
During the 2005 PWPE, Mr. Kienast never complained his hand
tremors impaired his ability to complete the test. See AR at p. 22; Docket 8
21
at ¶ 25. While noting Mr. Kienast’s “dorsal neck pain and onset of occipital
headache[s]” the PWPE evaluator never mentioned hand tremors “during
testing in the dynamic strength category . . . .” (Docket 25 at ¶ 25). Mr.
Kienast “participated fully in 20 of 20 tasks and demonstrated self-limiting
by stopping on 0 out of 20 tasks.” (AR at p. 22). “Based upon the
evaluation, the claimant was capable of sustaining the Medium level of
work4 . . . for an 8-hour work day . . . .” Id.; see also Docket 8 at ¶ 25. Mr.
Kienast never testified his hand tremors affected his daily activities,
including being on his computer conducting an online business. See
Docket 8 at ¶¶ 52 & 53. Nor did Mr. Kienast testify his tremors were one of
the reasons he could no longer work as a warehouse and delivery person or
as an insurance claims adjuster in his own business. Id. at ¶ 54.
The ALJ properly considered and weighed the evidence and Mr.
Kienast’s testimony. His argument the RFC’s lack of manipulative
limitations is defective is without merit. Wildman, 596 F.3d at 969. Again,
“the ALJ was not obligated to include limitations from opinions he properly
disregarded.” Id. The ALJ properly included Dr. Fromm’s medical
recommendations for limitations of physical activities and also properly
4
“Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds. If someone
can do medium work, we determine that he . . . can also do sedentary and light
work.” 20 CFR § 404.1567(c).
22
rejected Mr. Kienast’s claim of manipulative limitations. The court finds
substantial evidence in this record which a reasonable mind might accept
as adequate to support the ALJ’s decision on Mr. Kienast’s RFC. 42 U.S.C.
§ 405(g); Choate, 457 F.3d at 869.
Mr. Kienast’s challenge to the 2010 ALJ decision on this ground is
denied.
C.
THE RFC ERRONEOUSLY ASSUMES MR. KIENAST IS
FUNCTIONAL FOR AN ENTIRE 8-HOUR WORKDAY
Plaintiff argues the ALJ erroneously assumed Mr. Kienast could
functionally perform “for an entire 8-hour workday.” (Docket 10 at p. 18).
Mr. Kienast’s argument is premised primarily upon his own testimony
relating to pain intensity and his need to rest. Id. at pp. 18-19.
The ALJ did not assume Mr. Kienast could perform an 8-hour
workday. Rather, the ALJ accepted the substantial weight of the evidence
that Mr. Kienast could perform light work. That evidence includes:
In 2005 the PWPE concluded Mr. Kienast was capable of
performing medium work [which has a higher level of physical
demands]. (AR at p. 22; Docket 8 at ¶ 25);
In 2005, after reviewing the PWPE, Dr. Lawlor placed Mr.
Kienast on a maximum lift limit of 35 pounds, no upper
extremity overhead activity, changing positions from sitting to
standing and walking every 45 minutes as necessary, and Mr.
Kienast concurred with these limitations. (AR at p. 22);
In 2005, an orthopedic consultant with the South Dakota
Disability Determination Services (“DDS”) completed a RFC.
This report concluded Mr. Kienast “had the physical capacity
23
. . . to occasionally lift and carry 20 pounds, frequently lift and
carry 10 pounds, stand and/or walk about six hours in an
eight-hour workday, sit for about six hours in an eight-hour
workday . . . .” (Docket 8 at ¶ 26; AR at pp. 22-23);
In 2006, a second consultant with DDS also completed a RFC.
This consultant concluded Mr. Kienast “had the physical
capacity . . . to occasionally lift and carry 20 pounds, frequently
lift and carry 10 pounds, stand and/or walk about six hours in
an eight-hour workday, sit for about six hours in an eight-hour
workday . . . .” (Docket 8 at ¶ 29; AR at p. 23); and
The ALJ found Mr. Kienast “attends to his own personal needs .
. . has no difficulty operating a motor vehicle as well as riding
his ATV for fun, he works part-time at his online computeroperated business . . . he spends hours each day, in one-half
hour segments, reading and working on his computer, . . .
prepares meals, goes shopping, goes fishing, and performs
household chores.” (AR at p. 23).
Light work is defined by Social Security Regulations as:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do
light work, we determine that he . . . can also do sedentary work,
unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 CFR § 404.1567(b). In making his determination that Mr. Kienast was
capable of performing light work, the ALJ “considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence . . . .” (AR at p. 20).
24
In arriving at the light work conclusion, the ALJ gave Mr. Kienast “the
benefit of the doubt by placing his [RFC] at light instead of the medium
determined by the FCE Evaluation.” Id. at p. 23.
The court finds substantial evidence in this record which a reasonable
mind might accept as adequate to support the ALJ’s decision on Mr.
Kienast’s RFC. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869. Mr. Kienast’s
challenge to the 2010 ALJ decision on this ground is denied.
Within the same objection, Mr. Kienast argues the ALJ erred by not
using the Medical Vocational Guidelines (“MVGs”) of 20 CFR, part 404,
subpart P, appendix 2. (Docket 10 at p. 20). The ALJ found Mr. Kienast
was capable of performing light work and, therefore, was not disabled. (AR
at pp. 23-24; Docket 8 at ¶ 6). This conclusion was made at step four of the
sequential evaluation process. “At the fourth step, we consider our
assessment of your residual functional capacity and your past relevant
work. If you can still do your past relevant work, we will find that you are
not disabled.” 20 CFR § 404.1520(a)(iv). The MVGs are not a consideration
unless the claimant reaches step five of the sequential evaluation process.
Plaintiff’s emphasis on the MVGs is misplaced because the ALJ found
Mr. Kienast not disabled at step four and did not need to proceed to step
five of the sequential process. “If a claimant is found . . . not disabled at
any step in the sequential process, the ALJ need not proceed further.”
25
Nimick v. Secretary of Health and Human Services, 887 F.2d 864, 865 (8th
Cir. 1989) (referencing § 404.1520(a)(4) (“If we can find that you are . . . not
disabled at a step, we make our determination or decision and we do not go
on to the next step.”).
Mr. Kienast’s challenge to the 2010 ALJ decision on this ground is
denied.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s motion (Docket 9) is denied.
IT IS FURTHER ORDERED that defendant’s motion (Docket 11) is
granted.
Dated March 13, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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