Coolley v. Colvin
Filing
19
ORDER denying 14 Motion to Reverse; granting 16 Motion to Affirm. Signed by Chief Judge Jeffrey L. Viken on 3/24/16. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5001-JLV
MARILYN M. COOLLEY,
Plaintiff,
ORDER
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
INTRODUCTION
Plaintiff Marilyn Coolley filed a complaint appealing from an
administrative law judge’s (“ALJ”) decision denying disability insurance benefits.
(Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 9). The
court issued a briefing schedule requiring the parties to file a joint statement of
material facts (“JSMF”). (Docket 11). The parties filed their JSMF. (Docket
12). The parties also filed a joint statement of disputed material facts
(“JSDMF”). (Docket 13). For the reasons stated below, plaintiff’s motion to
reverse the decision of the Commissioner (Docket 14) is denied and the
Commissioner’s motion to affirm (Docket 16) is granted.
FACTUAL AND PROCEDURAL HISTORY
The Commissioner does not dispute the accuracy of the facts contained in
the JSDMF, but only challenges the relevance of those facts. (Docket 13 at p. 1).
The parties’ JSMF (Docket 12) and JSDMF (Docket 13) are incorporated by
reference. Further recitation of salient facts is incorporated in the discussion
section of this order.
On October 14, 2011, Ms. Coolley filed an application for disability
insurance (“DI”) benefits alleging an onset of disability date of July 22, 2011.
(Docket 12 ¶ 1). On November 1, 2013, the ALJ issued a decision finding Ms.
Coolley was not disabled. Id. ¶ 5; see also Administrative Record at pp. 20-29
(hereinafter “AR at p. ____”). On November 5, 2014, the Appeals Council denied
Ms. Coolley’s request for review and affirmed the ALJ’s decision. (Docket 12
¶ 7). The ALJ’s decision constitutes the final decision of the Commissioner of
the Social Security Administration. It is from this decision which Ms. Coolley
timely appeals.
The issue before the court is whether the ALJ’s decision of November 1,
2013, that Ms. Coolley was not “under a disability, as defined by the Social
Security Act, from July 22, 2011, through [November 1, 2013]” is supported by
the substantial evidence in the record as a whole. (AR at p. 28) (bold omitted);
see also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the
findings of the Commissioner of Social 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.
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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 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 decide the case differently, it cannot reverse the 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)).
Issues of law are reviewed de novo with deference given to the Commissioner’s
construction of the Social Security Act. See Smith, 982 F.2d at 311.
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The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and entitled
to disability benefits under Title II. 20 CFR § 404.1520(a). If the ALJ
determines a claimant is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not disabled. Id. The
five-step sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one 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 (if so, the claimant is
disabled without regard to age, education, and work experience); (4)
whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant can
perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the
five-step sequential evaluation required by the Social Security Administration
regulations. (AR at pp. 20-21).
STEP ONE
At step one, the ALJ determined Ms. Coolley had not been engaged in
substantial gainful activity since July 22, 2011, the alleged onset date. Id. at
p. 22; see also Docket 12 ¶ 207.
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STEP TWO
“At the second step, [the agency] consider[s] the medical severity of your
impairment(s).” 20 CFR § 404.1520(a)(4)(ii). “It is the claimant’s burden to
establish that [her] impairment or combination of impairments are severe.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is
defined as one which significantly limits a physical or mental ability to do basic
work activities. 20 CFR § 404.1521. An impairment is not severe, however, if it
“amounts to only a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500
F.3d at 707. “If the impairment would have no more than a minimal effect on
the claimant’s ability to work, then it does not satisfy the requirement of step
two.” Id. (citation omitted). Additionally, the impairment must have lasted at
least twelve months or be expected to result in death. See 20 CFR § 404.1509.
The ALJ identified Ms. Coolley suffered from the following severe
impairments: “obesity, sleep apnea, a rotator cuff tear of the right shoulder, and
bilateral knee pain.” (Docket 12 ¶ 208). Ms. Coolley objects to this finding and
argues the ALJ should have included the following additional severe
impairments: “bilateral foot pain,” “the side-effects of diuretic medication,” “the
sedating effects of Vicodin and Tramadol,” and “edema of both lower extremities.”
(Docket 15 at pp. 18 & 19).
Ms. Coolley argues the “failure to identify a severe impairment prevented
the credibility finding, residual functional capacity [“RFC”] assessment, and
5
vocational opinion from being supported by substantial evidence.” Id. at
pp. 19-20 (referencing Pratt v. Sullivan, 956 F.2d 830, 836-37 (8th Cir. 1992).
She also argues that “[t]he ALJ’s failure to identify severe impairments, and their
combined effects, negatively influenced the ALJ’s assessment at step three.” Id.
at p. 20.
The Commissioner argues Ms. Coolley has not carried her burden of proof
that the alleged additional impairments were severe. (Docket 17 at pp. 11-17).
The Commissioner asserts Ms. Coolley’s feet condition was resolved by the use of
custom orthotics. Id. at p. 14. Regarding the use of prescription diuretics, the
Commissioner argues “[Ms.] Coolley fails to establish [any] extreme side effect
. . . .” Id. (referencing AR at pp. 22-23). Although Ms. Coolley “alleged an
extreme and unpleasant side effect . . . she never complained to or sought help
from her health care providers during the relevant time.” Id. at p. 15. The
Commissioner opposes plaintiff’s argument concerning any side effects of
Vicodin and Tramadol because she advances this argument “[w]ithout any
citation to medical evidence” and without ever “voic[ing] this complaint to her
doctors.” Id. at p. 16 (referencing Johnston v. Apfel, 210 F.3d 870, 873 (8th Cir.
2000). Finally, the Commissioner claims the ALJ addressed Ms. Coolley’s
“complaints of edema” because “she took medication to control edema . . . .” Id.
“It is the claimant’s burden to establish that [her] impairment or
combination of impairments are severe.” Kirby, 500 F.3d at 707. The
regulations describe “severe impairment” in the negative. “An impairment or
6
combination of impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.” 20 CFR § 404.1521(a).
Thus, a severe impairment is one which significantly limits a claimant’s physical
or mental ability to do basic work activities. “Basic work activities” are defined
to “mean the abilities and aptitudes necessary to do most jobs.” Id.
§ 404.1521(b). The regulations explain those “abilities and aptitudes” involve:
(1)
Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or
handling;
(2)
Capacities for seeing, hearing, and speaking;
(3)
Understanding, carrying out, and remembering simple
instructions;
(4)
Use of judgment;
(5)
Responding appropriately to supervision, co-workers
and usual work situations; and
(6)
Dealing with changes in a routine work setting.
Id. Each of Ms. Coolley’s claims will be separately addressed.
BILATERAL FOOT PAIN
The administrative record reflects that Ms. Coolley was seen by podiatrist
Dr. Stansberry on September 17, 2009, “for complaints of pain in both feet.”
(Docket 13 ¶ 9). The diagnosis on that day was “plantar fasciitis and arthritis of
the navicular cuneiform joint.” Id. ¶ 11. The podiatrist recommended
orthotics to “assist in controlling foot geometry and force direction by reducing
the need for muscles to compensate for the joint instability.” Id. ¶ 12. After
7
wearing the orthotics for approximately three weeks Ms. Coolley reported “some
pain when she first got up in the morning and otherwise was really liking her
orthotics.” Id. ¶ 15. During that same consultation, Ms. Coolley reported her
orthotics were “doing very well and she [was] having minimal problems or pain
with her feet.” (AR at p. 415).
Without citing the entirety of the medical records, Ms. Coolley did not seek
medical care or express foot pain in the nature of plantar fasciitis or arthritis of
the foot joint again. Ms. Coolley has not carried her burden of proof that
“bilateral foot pain” is a separate, severe impairment. Kirby, supra.
SIDE-EFFECTS OF DIURETIC MEDICATION
In her reply brief, Ms.Coolley withdrew the argument that medication
side-effects are an issue to be resolved at step two. (Docket 18 at p. 7). Rather,
she argues any side-effects should be considered when assessing credibility. Id.
SEDATING EFFECTS OF VICODIN AND TRAMADOL
Ms. Coolley withdrew her claim on this issue at step two. Id.
EDEMA OF BOTH LOWER EXTREMITIES
Ms. Coolley’s opening brief did not address her claim that edema of both
lower extremities should be considered a severe impairment at step two. See
Docket 18 at pp. 17-20. In her reply brief, plaintiff argues “edema . . . is a severe
medically determined impairment as defined at 20 CFR § 404.1513, because it
results from ‘anatomical or physiological . . . abnormalities which can be shown
by medically acceptable clinical and laboratory diagnostic techniques.’ ”
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(Docket 18 at pp. 9-10) (brackets omitted). Plaintiff acknowledges the edema
should be associated with her “obesity, sleep apnea, and knee surgery.” Id. at
p. 10. She argues her edema affected the manner in which she ambulated. Id.
The medical record frequently charted Ms. Coolley’s various stages of
edema and that it appeared to wax and wane depending on the relative severity of
her other health conditions, particularly her weight and hypertension. (Docket
12 ¶¶ 14, 16, 18, 21, 24, 26, 29, 50, 51, 65, 73, 78, 82 & 98). The common
report was that her edema was caused by a combination of her morbid obesity
and sleep apnea. Id. ¶¶ 17, 55 & 65. Norvasc which treated her hypertension
and Lasix which reduced water retention prompted reduction in the severity of
her condition. Id. ¶¶ 29, 58, 63, 69, 78 & 82. When Norvasc diminished in
effectiveness Furosemide was prescribed which reduced the edema in her legs.
Id. ¶¶ 62 & 69. Ms. Coolley was encouraged to lose weight, complete low-impact
exercises and elevate her legs when edema caused problems. Id. ¶¶ 15, 39, 57,
65 & 74.
The record discloses Ms. Coolley’s edema was generally controlled through
medication, either directly or through control of her hypertension. “If an
impairment can be controlled by treatment or medication, it cannot be
considered disabling.” Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995)
(quoting Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)). Ms. Coolley has
not carried her burden of proof that “edema of both lower extremities” is a
separate, severe impairment. Kirby, supra.
9
The ALJ properly identified and considered Ms. Coolley’s edema as a
non-severe medical condition and impairment. The impact, if any, of Ms.
Coolley’s non-severe impairments on the ALJ’s credibility determination of Ms.
Coolley and the RFC determination will be discussed later in this order.
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”).
20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s impairment or
combination of impairments meets or medically equals the criteria for one of the
impairments listed and meets the duration requirement of 20 CFR § 404.1509,
the claimant is considered disabled. A claimant has the burden of proving an
impairment or combination of impairments meet or equals a listing within
Appendix 1. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004).
The ALJ found Ms. Coolley did “not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments” of Appendix 1. (AR at p. 23). The ALJ considered Ms. Coolley’s
bilateral knee impairment but found it did “not meet the criteria of Listing 1.02(A)
as there is no evidence of inability to ambulate effectively as defined in 1.00B2b.”
Id. The absence of “evidence of inability to ambulate effectively” was the basis
for the ALJ’s decision to conclude Ms. Coolley’s obesity did not qualify as a listed
impairment. Id.
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Ms. Coolley argues the ALJ erred in concluding she did not have “impaired
ambulation” as a “morbidly obese” individual “with bilateral midfoot arthritis,
bilateral knee replacements, persistent severe edema in her bilateral lower
extremities, and shortness of breath associated with the exertion of carrying 273
to 308 pounds on her five-foot frame.” (Docket 15 at p. 23). As evidence of her
ambulation problem, Ms. Coolley points to her testimony that she used “a cane,
walker, and motorized scooter” at her last position of employment. Id.
(referencing Docket 12 ¶ 9). She also argues that “[i]n December 2013 she had
‘wide-based, waddling irregular gait, and abnormal balance’ with abnormal
motor strength and tone.” Id. (referencing Docket 12 ¶ 98). Ms. Coolley further
asserts the ALJ erred by not considering her right chronic rotator cuff tear under
Listing 1.02 as an “inability to perform fine and gross movements effectively on a
sustained basis . . . .” (Docket 15 at p. 25) (underlining omitted).
The Commissioner argues Ms. Coolley failed to sustain her burden in
showing the evidence establishes her combined impairments are equal in
severity to all of the medical criteria of a specific Listing. (Docket 17 at
pp. 18-21). The Commissioner asserts Ms. Coolley “did not need to use both
hands for a walker or canes.” Id. at p. 18 (referencing Listing 1.00(B)(2)(b)(2)).
Effective ambulation is described in the Social Security Regulations as
follows:
To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily living. They
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must have the ability to travel without companion assistance
to and from a place of employment or school. Therefore,
examples of ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at a
reasonable pace on rough or uneven surfaces, the inability to
use standard public transportation, the inability to carry out
routine ambulatory activities, such as shopping and banking,
and the inability to climb a few steps at a reasonable pace with
the use of a single hand rail.
The ability to walk
independently about one’s home without the use of assistive
devices does not, in and of itself, constitute effective
ambulation.
Appendix 1, Listing 1.00(B)(2)(b)(2).
There is no evidence Ms. Coolley cannot walk without the assistance of a
walker or two canes. Rather, it is her preference from time-to-time to use a
walker or one cane. (AR at pp. 51-52). Ms. Coolley testified she could sit for a
couple of hours and then get up and walk around for 5-10 minutes before sitting
for another couple of hours. (AR at p. 44). Ms. Coolley stated she was able to
move slowly from room to room and was capable of walking up three steps,
catching her breath and then continuing up the three remaining steps in her
home. (Docket 12 ¶ 99; AR at p. 53). The evidence supports the ALJ’s
conclusion that Ms. Coolley could effectively ambulate. (AR at p. 23).
Listing 1.00(B)(2)(c) specifically requires a finding of “an extreme loss of
function of both upper extremities.” Appendix 1, Listing 1.00(B)(2)(c) (emphasis
added). There is no claim of any impairment of function of Ms. Coolley’s left
upper extremity. The record lacks any reference to Ms. Coolley’s right shoulder
rotator cuff tear having a significant effect on her fine or gross motor skills as
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contemplated by Listing 1.00(B)(2)(c). See Dockets 12 & 13 and AR at pp.
34-60. Ms. Coolley testified she has no problem making a fist with her right
hand, holding onto things without dropping them and is able to twist a door
handle to open, although sometimes she uses her left hand to accomplish that
task. (AR at p. 46). She is able to drive a car and use her home computer to
check her bank account and conduct job research. Id. at p. 49.
The claimant bears the burden of proving she “has a medically severe
impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137,
146 n. 5 (1987). The ALJ properly concluded that Ms. Coolley’s right upper
extremity did not qualify as meeting or medically equaling the severity of one of
the listed impairments. Ms. Coolley has not carried her burden of proof at step
three. Bowen, supra.
STEP FOUR
Before considering step four of the evaluation process, the ALJ is required
to determine a claimant’s residual functional capacity. 20 CFR § 404.1520(e).
RFC is a claimant’s ability to do physical and mental work activities on a
sustained basis despite any limitations from her impairments. Id.
§ 404.1545(a)(1). In making this finding, the ALJ must consider all of the
claimant’s impairments, including those which are not severe. Id.
§ 404.1545(e). All of the relevant medical and non-medical evidence in the
record must be considered. Id. §§ 404.1520(e) and 404.1545.
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“The ALJ should determine a claimant’s RFC based on all the relevant
evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [her] limitations.”
Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v.
Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox, 495 F.3d at
619 (because RFC is a medical question, the ALJ’s decision must be
supported by some medical evidence of a claimant’s ability to function in the
workplace, but the ALJ may consider non-medical evidence as well); Guilliams,
393 F.3d at 803 (“RFC is a medical question, and an ALJ’s finding must be
supported by some medical evidence.”). The ALJ “still ‘bears the primary
responsibility for assessing a claimant’s residual functional capacity based on all
relevant evidence.’ ” Guilliams, 393 F.3d at 803 (quoting Roberts v. Apfel, 222
F.3d 466, 469 (8th Cir. 2000)).
“In determining RFC, 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) (citing Baldwin v. Barnhart, 349 F.3d 549, 556
(8th Cir. 2003)). As stated earlier in this discussion, a severe impairment is one
which significantly limits an individual’s physical or mental ability to do basic
work activities. 20 CFR § 404.1521(a).
Ms. Coolley claims the ALJ erred by determining RFC before hearing Ms.
Coolley’s testimony, determining credibility and considering the post-hearing
medical evidence. (Docket 15 at p. 15). Because the ALJ presented a
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hypothetical question containing a RFC to the vocational expert at the beginning
of the hearing and before taking any other testimony, Ms. Coolley argues the ALJ
predetermined her RFC and “deprived [her] of a meaningful ‘opportunity to be
heard . . . .’ ” Id. at p. 16.
The Commissioner argues the ALJ’s decision to ask the vocational expert
the hypothetical RFC question does not mean the ALJ improperly predetermined
step four out of order. (Docket 17 at pp. 6-11). The Commissioner asserts that
the written decision of the ALJ properly “summarized Coolley’s testimony,
application information, and medical information, including the post hearing
evidence, in some detail . . . .” Id. at p. 7. Further, the Commissioner argues
the vocational expert remained available throughout the hearing in the event the
testimony in some fashion changed the content of the hypothetical RFC. Id. at
p. 10.
Ms. Coolley’s argument is misplaced. It is the ALJ’s obligation to follow
the five step evaluation process in arriving at the ultimate decision. How the
evidence, including the use of a hypothetical RFC and the testimony of a
vocational expert, comes into the administrative record does not impact the
ultimate decision. Where the hypothetical question posed to the vocational
expert does not adequately reflect the claimant’s impairments, the testimony of
the vocational expert cannot constitute substantial evidence on the record as a
whole. See Ross v. Apfel, 218 F.3d 844, 850 (8th Cir. 2000). If the assessment
of Ms. Coolley’s RFC is correct, the question posed to the vocational expert is
15
then an appropriate area of inquiry and the answer may constitute substantial
evidence. See Pratt v. Sullivan, 956 F.2d 830, 836 (8th Cir. 1992)
(“[H]ypothetical question[s] posed to [a] vocational expert must precisely set out
all claimant’s impairments.”) (citations and internal quotation marks omitted).
The record does not support Ms. Coolley’s argument the ALJ asked the
vocational expert the hypothetical question, prevented Ms. Coolley or her
representative from questioning the witness and discharged the witness. To the
contrary, the transcript of the hearing disclosed the ALJ went back and forth
between questioning Ms. Coolley and the vocational expert. (AR at pp. 37-41).
At no point during the hearing did Ms. Coolley’s representative ask for leave to
question the vocational expert and the court will not adopt the argument Ms.
Coolley’s representative was so unfamiliar with the administrative process as to
require the ALJ to invite claimant’s questioning of the witness. (Docket 18 at
pp. 3-4).
CREDIBILITY
As part of the process of determining RFC the ALJ must consider the
credibility of the claimant and the weight to be given to the evidence as a whole.
Ms. Coolley claims diuretic medicine causes her to urinate so frequently this
side-effect must be considered in evaluating her credibility. (Docket 18 at p. 7).
During the June 18, 2013, hearing Ms. Coolley testified that when “taking
160 milligrams of Furosemid[e] [she must go] to the bathroom every five minutes
. . . . for probably the first 4 hours . . . then it goes to 10 minutes, 15 minutes, to
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the point [by 6 hours later she is] going about every half-hour.” (Docket 12
¶¶ 179 & 181). In a 2013 post-hearing disability physical, Ms. Coolley “reported
that she needed to void very frequently the first three hours after taking
Furosemide, sometimes voiding every 15-30 minutes.” Id. ¶ 89.
The ALJ acknowledged Ms. Coolley’s testimony on this issue. (AR at pp.
22-23). He concluded “[h]owever, there is no evidence that she has reported this
side effect to any treating or examining source, and no documentation of
problems with excessive urination in the medical record.” Id. at p. 23. Ms.
Coolley does not cite any medical record of a “treating or examining source”
which contradicted the ALJ’s finding. Id. Rather, she argues that because the
purpose of diuretic medications is to cause urination, the ALJ must accept Ms.
Coolley’s testimony as corroborated. (Docket 18 at p. 7).
Ms. Coolley makes the same credibility claim with regard to the ALJ’s
failure “to address the sedating effects of Vicodin and Tramadol.” (Docket 15 at
p. 19) (referencing Docket 12 ¶¶ 69 & 134). Ms. Coolley argues Tramadol and
Vicodin cause fatigue and drowsiness. (Docket 18 at p. 8). Because of this
post-hearing declaration, Ms. Coolley argues the ALJ should have “factor[ed]
these limitations in to the RFC.” Id.
In October 2010, Dr. Vosler renewed Ms. Coolley’s prescription for
Tramadol. (Docket 12 ¶ 24). Ms. Coolley’s earlier prescription was for 60 pills
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which lasted approximately 5 months.1 Id. During the October visit, Ms.
Coolley did not mention any side effect of Tramadol. Subsequent consultations
likewise failed to mention any significant side effect from Tramadol. Id. ¶¶ 35,
53 & 62. In January 2012, Ms. Coolley reported she was taking Tramadol twice
daily without relief but made no mention of any adverse side effect. Id. ¶¶ 67 &
69.
The medical records chart a similar history with Vicodin. Id. ¶¶ 68-69.
Ms. Coolley was taking Vicodin every 6-8 hours for pain in January 2012. She
reported no adverse side effect during any subsequent medical appointments.
Id. ¶¶ 72, 76, 81 & 84. But in a January 31, 2012, disability report Ms. Coolley
reported that “Tramadol caused extreme tiredness and Vicodin caused extreme
tiredness and sleepiness.” Id. ¶ 134. During the administrative hearing Ms.
Coolley made no mention of either drug or any adverse side effect. (AR at
pp. 34-60). Just because drowsiness or fatigue may be a potential side effect of
a medication does not make the side effect a severe impairment in this case.
Ms. Coolley testified she could lift a jug of water and a 10-pound bag of
flour using both hands. Id. at p. 44. She indicated she was able to sit for a
couple of hours, get up and walk for 5-10 minutes and then sit for another
couple hours. Id. at pp. 44-45. She testified she was capable of doing this
cycle of activity several times a day. Id. at p. 45.
1
On average this would equate to taking only one pill every two to three
days.
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Addressing any limitation caused by her shoulder injury, Ms. Coolley
testified she was able to extend her right arm to about shoulder level, both in
front and to the side. Id. She has no problem making a fist with her right hand
or holding onto things without dropping them and was able to twist a door
handle to open a door, although sometimes she used her left hand to accomplish
that task. Id. at p. 46. She is able to drive a car and use her home computer to
check her bank account and conduct job research. Id. at p. 49. After being
laid off from her last job when the business closed, Ms. Coolley took several
computer classes to increase her job skills. Id. at p. 55.
Ms. Coolley testified she applied for a position at the new company which
was situated in the same building as her previous employer.
Id. at p. 57. She
felt she “would have worked with no problem whatsoever” doing the same type of
work she had performed before. Id. Against this testimony, Ms. Coolley argues
she is disabled and unable to work at any level of exertion. Id. at p. 59.
The ALJ concluded Ms. Coolley’s “statements concerning the intensity,
persistence and limiting effect of [her medically determinable symptoms]” was
not “entirely credible.” (AR at p. 25). The ALJ articulated the reasons for that
credibility determination. Id. at pp. 25-26.
Contrary to the plaintiff’s argument, the ALJ’s findings are supported by
the record. “Where adequately explained and supported, credibility findings are
for the ALJ to make.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). Again,
the court must “defer to an ALJ’s credibility finding as long as the ALJ explicitly
19
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). While the court notes there is evidence contrary to the
findings of the ALJ, the decision to discount Ms. Coolley’s credibility is supported
by the substantial weight of the evidence. Guilliams, 393 F.3d at 801; Schultz,
479 F.3d at 983. Ms. Coolley’s objection to the ALJ’s credibility finding is
overruled.
RESIDUAL FUNCTIONAL CAPACITY
Having made a credibility determination concerning Ms. Coolley’s
statements and testimony, the ALJ incorporated Ms. Coolley’s testimony
regarding her lifting and carrying limitation and her sitting and walking activity
into the finding that she is capable of performing sedentary work. (AR at p. 24).
Sedentary work is defined in the regulations as follows:
Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 CFR § 404.1567(a). Sedentary work requires only occasional walking and
standing. Id. “Occassional” is defined as “occurring from very little up to
one-third of the time, and would generally total no more than about 2 hours of an
8-hour workday.” Titles II & XVI: Determining Capability to Do Other Work—
Implications of a Residual Functional Capacity for Less than a Full Range of
20
Sedentary Work, SSR 96-9p (S.S.A 1996); see also Titles II & XVI: Determining
Capability to Do Other Work—The Medical-Vocational Rules of Appendix 2,
1983-1991, SSR 83-10 (S.S.A. 1983). The amount of sitting required in a
sedentary job, “would generally total about 6 hours of an 8-hour workday.” SSR
96-9p. These were the same limitations articulated by the non-examining
physician and adopted by the ALJ. (AR at p. 28).
The conclusion Ms. Coolley had a RFC to perform past relevant
work was a determination at step four of the sequential evaluation process.2
See 20 CFR § 404.1520(a)(4)(iv) (“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.”). If the ALJ
determines a claimant is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not disabled. Id.
§ 404.1520(a)(4). See also Nimick v. Secretary of Health and Human Services,
887 F.2d 864, 865 (8th Cir. 1989).
Posing a hypothetical question to the vocational expert during the
administrative hearing is typically part of step five in the sequential evaluation
process. Baker, 159 F.3d at 1144. The “burden of production shifts to the
Commissioner at step five.” Stormo, 377 F.3d at 806. In this case, however,
the opinion of the vocational expert provided additional opinion support for the
ALJ’s finding at step four. The vocational expert concluded “this . . .
hypothetical would be consistent with past work as a collector as actually
performed and described in the record.” (AR at p. 41).
2
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The ALJ’s conclusion that Ms. Coolley is not disabled is supported by
substantial evidence in the record. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869;
Howard, 255 F.3d at 580.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion to reverse (Docket 14) is denied.
IT IS FURTHER ORDERED that defendant’s motion to affirm (Docket
16) is granted.
Dated March 24, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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