ERIN L. WIEDEMANN, Magistrate Judge.
Plaintiff, Charles D. Morse, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying his claim for a period of disability and disability insurance benefits under the provision of Title II of the Social Security Act (Act). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision.
Plaintiff protectively filed his current application for DIB on September 4, 2013, alleging an inability to work since July 29, 2012, due to diabetes, scoliosis of spine, high blood pressure, and neuropathy of feet. (Doc. 11, pp. 68-69). For DIB purposes, Plaintiff maintained insured status through December 31, 2017. (Doc. 11, p. 203). An administrative hearing was held on July 8, 2014, at which Plaintiff appeared with counsel and testified. (Doc. 11, pp. 44-67).
By written decision dated December 24, 2014, the ALJ found that during the relevant time period, Plaintiff had severe impairments of diabetes mellitus, hypertension, and obesity. (Doc. 11, p. 32). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Doc. 11, pp. 34-35). The ALJ found that Plaintiff retained the residual functional capacity (RFC) to perform medium work as defined in 20 CFR § 404.1567(c), except that Plaintiff could only frequently climb, balance, crawl, kneel, stoop, and crouch. (Doc. 11, pp. 35-39). With the help of a vocational expert (VE), the ALJ determined that Plaintiff was capable of performing past relevant work as an appliance assembler as it is actually and generally performed. (Doc. 11, p. 39).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on April 4, 2016. (Doc. 11, pp. 5-8, 26). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs, and are repeated here only to the extent necessary.
This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole.
It is well-established that a claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity.
The Commissioner's regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience.
Plaintiff argues the following issues on appeal: 1) the ALJ failed to fully and fairly develop the record; 2) the ALJ erred in finding that Plaintiff's shoulder and leg pain were not severe impairments; 3) the ALJ erred in his RFC determination; and 4) the ALJ erred in finding that Plaintiff could perform his past relevant work. (Doc. 11).
Plaintiff argues that the ALJ erred in failing to fully develop the record by failing to order a consultative orthopedic examination along with a medical source statement outlining Plaintiff's specific physical limitations as requested by Plaintiff's counsel. (Doc. 12, p. 3). The ALJ has a duty to fully and fairly develop the record.
In this case, the record consists of case analyses and psychiatric review techniques completed by non-examining medical consultants, a General Physical Examination form completed by an examining physician, and Plaintiff's medical records, which included clinic notes from treating physicians and imaging results. After reviewing the entire record, the Court finds the record before the ALJ contained the evidence required to make a full and informed decision regarding Plaintiff's capabilities during the relevant time period. Accordingly, the undersigned finds the ALJ fully and fairly developed the record.
Plaintiff argues that the ALJ erred in failing to find that Plaintiff's shoulder and leg pain were medically determinable and met severity. At Step Two of the sequential analysis, the ALJ is required to determine whether a claimant's impairments are severe.
As for Plaintiff's neuropathy, medical records showed that on December 3, 2013, Dr. Sean Baker at Mercy Hospital in Fort Smith prescribed Plaintiff Gabapentin for his neuropathy, to be taken three times per day. (Doc. 11, p. 445). On March 11, 2014, Plaintiff reported to Dr. Baker that he was having pain in his feet late afternoon and early evening. (Doc. 11, p. 447). However, Dr. Baker's notes reveal that Plaintiff was not taking the medication as often as prescribed. (Doc. 11, p. 447).
As for Plaintiff's right shoulder pain, Plaintiff was in an accident in 2001, injuring his right shoulder. (Doc. 11, pp. 34, 55). Plaintiff testified that he still had pain in his right shoulder from the injury and that the pain impacted his sleep. (Doc. 11, p. 55-56). Hearing testimony showed, however, that Plaintiff continued to work until 2012. (Doc. 11, p. 51). Moreover, the last thirteen years of his employment, Plaintiff worked as a machine operator, which according to the hearing testimony by the Vocational Expert, was medium level work. (Doc. 11, pp. 51, 63). In his application for benefits, Plaintiff alleged that he was unable to work due to diabetes, scoliosis of spine, high blood pressure, and neuropathy of feet. Plaintiff did not include right shoulder pain or injury in his application.
Furthermore, while the ALJ did not find all of Plaintiff's alleged impairments to be severe impairments, the ALJ specifically discussed the alleged impairments in the decision, and clearly stated that he considered all of Plaintiff's impairments, including the impairments that were found to be non-severe.
The ALJ was required to consider all the evidence relating to Plaintiff's subjective complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional restrictions.
After reviewing the administrative record, it is clear that the ALJ properly considered and evaluated Plaintiff's subjective complaints, including the
This level of activity belies Plaintiff's complaints of pain and limitation, and the Eighth Circuit has consistently held that the ability to perform such activities contradicts a Plaintiff's subjective allegations of disabling pain.
With regard to Plaintiff's physical impairments, the record revealed that Plaintiff was treated conservatively for hypertension, diabetes, neuropathy, GERD, hyperlipidemia, chronic renal insufficiency — mild, stage two, back pain, bradycardia, and short periods of coughing, acute bronchitis, insomnia, dizziness, and fatigue.
Based on the medical records, Plaintiff also appeared to experience relief for his diabetes, hypertension, GERD, and neuropathy with medication. The Court notes, an impairment which can be controlled by treatment or medication is not considered disabling.
Furthermore, the medical records repeatedly revealed that Plaintiff was non-compliant with his medications.
Lastly, upon discrediting Plaintiff's allegation that he is disabled, the ALJ further considered that Plaintiff performed medium level work for at least eleven years with his alleged disabling conditions. At the July 8, 2014 hearing before the ALJ, Plaintiff testified that he worked for Whirlpool for twenty-eight and one-half years, and his employment ceased in 2012 when the company experienced a period of lay-offs. (Doc. 11, pp. 51, 60). Hearing testimony revealed that Plaintiff's 2001 shoulder injury and his scoliosis, diagnosed when he was a teenager, were both conditions that had occurred many years prior and were ongoing during his employment at Whirlpool. "Working generally demonstrates an ability to perform a substantial gainful activity."
Moreover, after the separation from Whirlpool, Plaintiff was able to attend truck-driving school, which lasted for several weeks; obtain his commercial driver's license; and apply for jobs. (Doc. 11, pp. 57, 60). The medical record showed that on September 20, 2012, Plaintiff visited Mercy Medical Clinic and requested a letter from Stefanie Ellis, APN, stating that he was medically cleared to "perform duties of a DOT truck driver." (Doc. 11, p. 316). In August of 2013, Plaintiff shared with Dr. Baker that he was trying to find work. (Doc. 11, p. 339). "Acts which are inconsistent with a claimant's assertion of disability reflect negatively upon that claimant's credibility."
Plaintiff also testified that he received unemployment benefits for more than a year after he was laid off from Whirlpool. While the receipt of these benefits is not conclusive, applying for unemployment benefits adversely affects credibility because an unemployment applicant "must hold himself out as available, willing and able to work."
While it is clear that Plaintiff suffers with some degree of limitation, he has not established that he was unable to engage in any gainful activity prior to the expiration of his insured status. Accordingly, the Court concludes that substantial evidence supports the ALJ's conclusion that Plaintiff's subjective complaints were not totally credible.
RFC is the most a person can do despite that person's limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using all relevant evidence in the record.
"The [social security] regulations provide that a treating physician's opinion ... will be granted `controlling weight,' provided the opinion is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.'"
In the present case, when determining that Plaintiff could perform medium work with limitations, the ALJ considered the relevant medical records, the medical opinions from treating, examining, and non-examining physicians, and set forth the reasons for the weight given to the opinions.
In his argument, Plaintiff points to an August 6, 2014, General Physical Examination performed by Dr. Clifford Lamar Evans, where he opined that Plaintiff had mild/moderate limitation of 20% weakness in right arm and back, and neuropathy in his lower legs and feet. (Doc. 11, p. 463). The ALJ discussed the consultative examination and noted that Dr. Evans also reported that Plaintiff had a normal range of motion throughout his extremities and his cervical and lumbar spine with the only exception being a slightly decreased range of motion in his right shoulder (130/150). (Doc. 11, p. 36). The ALJ also noted that Dr. Evans' report showed that Plaintiff demonstrated no muscle spasms, no muscle atrophy, negative straight-leg raising tests, no sensory abnormalities, a normal gait, only a slight reduction in strength in his right arm (20%), and that Plaintiff was able to perform all requested limb function tests. (Doc. 11, p. 36). Further, Dr. Evans interpreted the x-rays of Plaintiff's back to reveal scoliosis, but opined that this would cause only mild to moderate limitations in his ability to lift and/or carry, as would the weakness in his right arm. (Doc. 11, p. 36). In sum, the ALJ gave Dr. Evans' opinion substantial weight except for his conclusion that Plaintiff had limitations as a result of the neuropathy in his feet. (Doc. 11, p. 38). The ALJ noted that Dr. Evans' opinion regarding the neuropathy was without any objective evidence upon which to base the restriction. (Doc. 11, p. 38).
The ALJ also discussed the non-examining medical consultants' physical assessments and gave them little to no weight due to the fact that their opinions failed to adequately assess the combined effects of Plaintiff's complaints and the fact that additional evidence was entered into the record after those opinions were rendered. (Doc. 11, p. 38). However, the ALJ gave substantial weight to the Psychiatric Review Techniques performed by the non-examining medical consultants because those opinions were consistent with the situational nature of Plaintiff's mental stressors and due to the fact that Plaintiff voluntarily chose to cease his medication prescribed to addressed the alleged condition. (Doc. 11, p. 38-39).
The ALJ also discussed the fact that an RFC of medium work with limitations was supported by the fact that Plaintiff could control his conditions with prescribed medication and that the fact that Plaintiff admits to being able to regularly perform activities of daily living, despite his alleged impairments. However, in consideration of Plaintiff's alleged back and shoulder pain, the ALJ limited the RFC to work where Plaintiff was only frequently required to climb, balance, crawl, kneel, stoop, and crouch. (Doc. 11, pp. 37-38).
The ALJ also took Plaintiff's obesity into account when determining that Plaintiff could perform medium work with limitations.
Based on the record as a whole, the Court finds substantial evidence to support the ALJ's RFC determination for the relevant time period.
Plaintiff has the initial burden of proving that he suffers from a medically determinable impairment which precludes the performance of past work.
According to the Commissioner's interpretation of past relevant work, a claimant will not be found to be disabled if he retains the RFC to perform:
20 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982);
Here, the ALJ specifically found that Plaintiff could return to his past relevant work as an appliance assembler. (Doc. 11, p. 39). In doing so, the ALJ relied upon the testimony of the Vocational Expert, who after reviewing the ALJ's proposed hypothetical question, which included the limitations addressed in the RFC determination discussed above, opined that the hypothetical individual would be able to perform Plaintiff's past relevant work.
Accordingly, having carefully reviewed the record, the undersigned finds substantial evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision should be affirmed. The undersigned further finds that the Plaintiff's Complaint should be dismissed with prejudice.