H. DAVID YOUNG, Magistrate Judge.
Plaintiff has appealed the final decision of the Commissioner of the Social Security Administration to deny her claim for supplemental security income (SSI). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g).
This Court's review function is limited to determining whether the Commissioner's findings are supported by substantial evidence on the record as a whole. See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusions." Id. The Court may not reverse merely because evidence would have supported a contrary outcome. See id.
The only disputed issue in this case is whether plaintiff is disabled within the meaning of the Social Security Act. Plaintiff bears the burden of establishing a physical or mental impairment that will result in death, or that has lasted twelve months or more and has prevented her from engaging in any substantial gainful activity. 42 U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 1382c(3)(A) and (B).
Plaintiff filed for SSI on November 17, 2008, alleging she had been disabled since July 1, 2007. Her application was denied initially and upon reconsideration, and she requested a hearing before an administrative law judge (ALJ).
Plaintiff was 46 years old at the time of the hearing, which was conducted on March 25, 2010. (Tr. 20-36). The plaintiff, who graduated from high school after taking special ed classes, testified at the hearing. A vocational expert witness also testified. The plaintiff testified that she had worked running a shirt press in the past, a job that required little lifting but a great deal of standing and bending. (Tr. 24). She also worked as a cook at a country club, a job which required her to bend and pick up boxes weighing more that 50 pounds. (Tr. 25). She worked as a cook at another job, then worked in 2008 at American Grading, a factory job
On May 19, 2010, the ALJ found the plaintiff was not disabled as defined in the Social Security Act. (Tr. 9-16). The ALJ specifically found the medical evidence established the plaintiff has the following severe impairments: cellulitis, anemia, joint pain, and back pain. The ALJ found the plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found the plaintiff has the residual functional capacity to perform the full range of sedentary work. In reaching this conclusion, the ALJ analyzed and discounted the subjective allegations of the plaintiff. The ALJ determined the plaintiff could not perform any of her past relevant work. Using the Medical-Vocational Guidelines, the ALJ found the plaintiff was not disabled. The Appeals Council, on June 18, 2011, denied plaintiff's request for review (Tr. 1-3), and plaintiff subsequently filed suit with this Court.
The ALJ considered her impairments by way of the familiar five-step sequential evaluation process.
The first step involves a determination of whether the claimant is involved in substantial gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is, benefits are denied; if not, the evaluation goes to the next step.
Step two involves a determination, based solely on the medical evidence, of whether the claimant has a severe impairment or combination of impairments. Id., § 404.1520©); see 20 C.F.R. § 404.1526. If not, benefits are denied; if so, the evaluation proceeds to the next step.
Step three involves a determination, again based solely on the medical evidence, of whether the severe impairment(s) meets or equals a listed impairment which is presumed to be disabling. Id., § 404.1520(d). If so, benefits are awarded; if not, the evaluation continues.
Step four involves a determination of whether the claimant has sufficient residual functional capacity, despite the impairment(s), to perform past work. Id., § 404.1520(e). If so, benefits are denied; if not, the evaluation continues.
Step five involves a determination of whether the claimant is able to perform other substantial and gainful work within the economy, given claimant's age, education and work experience. Id., § 404.1520(f). If so, benefits are denied; if not, benefits are awarded.
In support of her request for reversal, plaintiff asserts that the ALJ erred by: (1) failing to obtain physical and mental consultative examinations; (2) failing to find the plaintiff's obesity was a severe impairment; and (3) relying upon the Medical-Vocational Guidelines. Plaintiff's brief at 12-15.
The plaintiff first argues that the ALJ erred by failing to obtain physical and mental consultative examinations. The following exchange occurred at the outset of the administrative hearing:
(Tr. 22-23).
It is true that the plaintiff did not offer a large volume of medical records in support of her claim. The plaintiff was seen in July of 2007 at St. Bernard's Medical Center emergency room for syncope. She was admitted on July 11 and discharged on July 13 with instructions to follow up with family doctor for syncope. Numerous tests were conducted during her stay, and the plaintiff's history of alcohol and marijuana abuse was noted, she was instructed on smoking cessation, and the etiology of her syncope was ultimately found to be unknown. (Tr. 186). The plaintiff next presented to another emergency room, SMC Regional Medical Center in Osceola, in May of 2008 after being struck by a vehicle. She complained of left knee pain but an x-ray was normal. (Tr. 260, 262). It appears that the plaintiff arrived at the emergency room shortly after 11 p.m., she was examined with generally normal findings (a heart arrhythmia was noted), an x-ray was taken before midnight, and she was discharged at 1:40 a.m. (Tr. 249-250). In November of 2008, the plaintiff presented to NEA Baptist Hospital emergency room in Jonesboro complaining of swelling in her left leg. (Tr. 283). She was admitted on November 14 and discharged on November 17. The primary diagnosis was cellulitis, with a secondary diagnosis of anemia. She was "markedly improved" on discharge, having taken antibiotics for the leg swelling. The discharge summary also noted that her anemia was stable on discharge, and there was a note that the Hematology department would be asked to see her in a clinic setting to evaluate the anemia. (Tr. 285).
The plaintiff contends the ALJ, who was clearly aware of her request for consultative examinations, erred in failing to direct that such examinations occur. In particular, the plaintiff argues the ALJ should have required a mental evaluation since the plaintiff graduated from high school after taking special education classes. First, with regard to the general claim that the ALJ should have directed that consultative examination occur, we are mindful that the plaintiff bears the burden of proving disability. Lochner v. Sullivan, 968 F.2d 725 (8
Second, regarding the allegation that mental consultative examinations should have been ordered, the medical record shows the plaintiff neither sought nor received any mental health care. Significantly, the plaintiff did not allege any mental impairments in her application for disability benefits, nor did she testify to any mental impairments at the administrative hearing. (Tr. 130). Under the circumstances, it would have been odd for an ALJ to seek mental health information. The plaintiff's work history shows that she worked for years without any mental issues. (Tr. 102-103). This ability to perform the past work does not support the notion of significant mental impairments, and does not support the notion that the ALJ should have been alert to expanding the record on this issue, as alleged by the plaintiff.
In summary, this case is similar to Pena v. Chater, 76 F.3d 906 (8
76 F.3d at 909.
Under the circumstances of this case, we find no error in the ALJ relying upon the record as it existed, and find no merit in the claim that the ALJ should have further developed the record.
The second claim for relief advanced by the plaintiff is ALJ error in failing to find the plaintiff's obesity was a severe impairment. As with mental impairments, we note that the plaintiff neither alleged obesity as a disabling impairment in her application nor testified to such at the administrative hearing. The plaintiff argues that her obesity is a nonexertional impairment and there is a possibility that it "could limit even her ability to sit." The flaw with this argument is the absence of any medical evidence to support her claim that her obesity limits her ability to perform sedentary work. The plaintiff points to no diagnosis of obesity
The third and final claim for relief is that the ALJ erred in relying upon the Medical-Vocational Guidelines and, instead, should have relied upon the testimony of a vocational expert. As previously noted, a vocational expert testified at the hearing concerning the plaintiff's past relevant work, and answering some hypothetical questions. The vocational expert, however, was not questioned on whether the plaintiff, assuming her to have no significant nonexertional impairments, could perform the full range of sedentary work. The ALJ reached this conclusion without relying on the vocational expert's testimony.
The plaintiff urges that vocational expert testimony is necessary when nonexertional impairments are present. She claims she suffers from the nonexertional impairments of obesity, chest pain, heart problems, and, possibly, some mental impairment. The defendant counters that the ALJ properly discounted the plaintiff's subjective complaints regarding nonexertional impairments and therefore there was no error in relying on the Grids. We are guided on this issue by McGeorge v. Barnhart, 321 F.3d 766, 768-769 (8
Using the language from McGeorge, two questions must be answered: one, did the ALJ find that the nonexertional impairments do not diminish the plaintiff's residual functional capacity to perform the full range of activities listed in the Guidelines?; and two, if the ALJ made such a finding, does the record support the ALJ's finding?
The first question is answered in the affirmative. A review of the ALJ's opinion reflects that he found the nonexertional impairments did not diminish the plaintiff's RFC to perform the full range of sedentary work. For example, the ALJ considered plaintiff's subjective allegations and found the "claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment [to perform the full range of sedentary work]." (Tr. 13). To support his conclusion, the ALJ noted inconsistencies in the plaintiff's report of daily activities in her December 2008 report versus the testimony offered at the hearing. In addition, the ALJ reviewed the medical records and found no restrictions or limitations imposed therein. (Tr. 13-14).
The second question from the McGeorge case is whether the record supports the ALJ's findings concerning the nonexertional impairments. We find the record does support the ALJ's finding that the plaintiff's nonexertional impairments only minimally affect her ability to perform sedentary work. Substantial evidence of record exists to support this conclusion. It is particularly persuasive that no treating physician indicated that the nonexertional impairments required significant restrictions on the plaintiff's activities. In addition, the plaintiff testified to an over the counter remedy (ibuprofen) to address any issues with these impairments. It is also noteworthy that these nonexertional impairments are alleged to be longstanding in nature
In summary, for the reasons cited herein, we find no merit in the arguments advanced by the plaintiff.
IT IS THEREFORE ORDERED that the final decision of the Commissioner is affirmed and plaintiff's complaint is dismissed with prejudice.
IT IS SO ORDERED.