J. LEON HOLMES, District Judge.
On March 12, 2007, Laqueita Nowden applied for supplemental security income pursuant to Title XVI of the Social Security Act. She alleged that she has been disabled and unable to work since January 1, 2007 because of "[d]iabetes, leg swells, breathing problems, fatigue[,] loose grip in [her] hand[, and an abscess] in her breast." (Tr. 125) Her application was initially denied on June 29, 2007, and upon reconsideration on August 29, 2007. At Nowden's request, an administrative law judge held a video hearing on July 10, 2009. Nowden and her mother appeared and testified from Pine Bluff, Arkansas, while the ALJ presided from Little Rock, Arkansas. A vocational expert also testified. In an opinion issued on September 11, 2009, the ALJ concluded that Nowden was not disabled. On July 17, 2010, the Appeals Council denied Nowden's request to review the ALJ's decision.
Subsequently, Nowden commenced this action pursuant to 42 U.S.C. § 405(g) (2006), seeking judicial review of the ALJ's determination. Review by the Court is limited. The Court must determine whether the ALJ's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); 42 U.S.C. § 405(g). In making that determination, the Court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it; the Court may not, however, reverse the Commissioner's decision merely because substantial evidence would have supported the opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004) ("Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.") (quotation omitted); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The Social Security Administration has promulgated a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520 (2011). The first step is to determine whether the claimant is engaged in substantial gainful activity. If so, benefits are denied. The second step is to determine based solely on the medical evidence whether the claimant has an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities, that is, a "severe" impairment. If not, benefits are denied. The third step is to determine, again based solely on the medical evidence, whether the severe impairments meet or equal a listed impairment that is presumed to be disabling. If so, and if the duration requirement is met, benefits are awarded. If the claimant does not meet or equal a Listing, then a residual functional capacity assessment is made based on all the relevant evidence. The fourth step is to determine whether the claimant has sufficient residual functional capacity, despite the impairments, to perform the physical and mental demands of past relevant work. If so, benefits are denied. The fifth step is to determine whether the claimant is able to make an adjustment to other work, given the claimant's age, education and work experience. If so, benefits are denied; if not, benefits are awarded. Id.
Nowden was born on May 28, 1984, and has at least a high school education. (Tr. 17) Although she worked as a part-time waitress after the alleged disability onset date, the ALJ concluded that this work did not rise to the level of "substantial gainful activity" and, consequently, found that Nowden had no past relevant work experience. (Tr. 13, 17) Nowden stated in her function report that she cares for her minor children, including cooking, cleaning, and playing with them. (Tr. 143-44) She performs such household functions as "cleaning, ironing, laundry, [and] washing dishes." (Tr. 146) Nowden explained, however, that these activities take her an extra long time because she must stop to rest. She takes her children to the park, the doctor's office, and the store. (Tr. 147) She shops for groceries and household appliances. Id. She has no problem handling money. (Tr. 147-48) Nowden engages in social activities on a daily basis and attends church weekly. Id. She stated that she can only walk ten to twenty minutes at a time, but that she has no attention problems, can follow instructions, and gets along well with authority figures. (Tr. 149-50) Nowden testified that she can read, write, and do basic arithmetic. (Tr. 23)
Nowden suffers from type 1 diabetes. She must take several insulin injections daily. Nowden's medical records and her admissions reveal that she has a history of failing to comply with her prescribed treatments. (Tr. 13, 15, 17, 34-35) However, she testified that he has been compliant with her medication regimen since April of 2009. (Tr. 31-32) Nevertheless, Nowden's mother testified that Nowden has had to be hospitalized even when properly taking her medications. (Tr. 49-50) Nowden testified that she can only stand for fifteen to twenty minutes before her feet swell, but that she has no problem sitting and can lift a gallon of milk. (Tr. 29) She testified that her feet felt better when she was taking her medications correctly. (Tr. 33) She also testified that he fingertips are very sore because she must prick them to test her blood sugar levels, but stated that otherwise she has no problems with her hands and can reach for, grab, and hold things. Id. Nowden's breast abscess was surgically resolved in June of 2006. (Tr. 444)
Nowden's medical records contain no opinions from treating or examining physicians. (Tr. 14) However, a physician working as a consultant for the state agency, Disability Determination for Social Security Administration, performed a physical residual functional capacity assessment. (Tr. 450-58) The physician concluded that Nowden could occasionally lift twenty pounds, frequently lift ten pounds, and sit, stand or walk about six hours in an eight-hour work day. Id. The physician found no postural, manipulative, visual, communicative, or environmental limitations. Id. Another state physician reviewed the medical records and confirmed the above findings. (Tr. 461)
Finally, Nowden testified that she suffers from some mental health issues. (Tr. 38) However, the ALJ found no evidence in the medical records that Nowden received any mental health treatment. (Tr. 13)
At the first step, the ALJ found that Nowden had worked as a part-time waitress from March of 2008 until April of 2009 but concluded that this work did not rise to the level of substantial gainful activity. Consequently, the ALJ found that Nowden had not engaged in any substantial gainful activity since the alleged onset date and, therefore, satisfied the first step. At the second step, the ALJ found that Nowden's diabetes was severe; that is, it caused limitations or restrictions having more than a minimal effect on Nowden's ability to do basic work-related activities.
Turning to the third step, the ALJ considered Listing 9.08 (diabetes) but concluded that Nowden's diabetes did not meet the requirements of that particular listing. After considering the entire record and applying the guidelines from Social Security Ruling 96-7p and Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), the ALJ found that Nowden's diabetes could reasonably be expected to produce Nowden's alleged symptoms but that Nowden's statements regarding the "intensity, persistence and limiting effects of these symptoms" were not credible to the extent they were inconsistent with the ALJ's residual functional capacity determination. The ALJ concluded that Nowden
At the fourth step, the ALJ found that Nowden had no past relevant work. Finally, at the fifth step, the ALJ found, based on the evidence and the vocational expert's testimony, that jobs which Nowden could perform exist in significant numbers in the national economy. The ALJ stated:
Therefore, the ALJ concluded that Nowden was not disabled and denied her disability claim.
Nowden contends that the ALJ erred as a matter of law and that his decision is not supported by substantial evidence. She contends that the vocational expert's testimony was inconsistent with the Dictionary of Occupational Titles. Nowden also contends that the ALJ failed to factor all of her medically determinable impairments into the residual functional capacity determination and failed to support that determination with substantial medical evidence.
Robinson argues that the vocational expert's testimony is unreliable because it conflicts with the Dictionary of Occupational Titles. See Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010) (when expert testimony conflicts with the DOT, the DOT controls unless the DOT classifications are rebutted). At the hearing, the ALJ had the following exchange with the vocational expert:
(Tr. 45-46) Nowden contends that the DOT's descriptions of the jobs cited by the vocational expert establishes that these positions are not compatible with Nowden's ability. Specifically, Nowden argues that the document preparer and telephone quotation clerk positions do not fit within Nowden's residual functional capacity because the DOT indicates that these jobs both require frequent
However, the escort driver position does not require frequent fingering. SCO at 93, app. C at C-3. Nowden offers nothing to substantiate her generalized allegation that the vocational expert's testimony about the escort driver position conflicts with the requirements of the DOT. Furthermore, the vocational expert testified that 1,146 escort driver positions are available in Arkansas and that 170,321 such jobs are available in the United States. Based on the vocational expert's testimony, the ALJ could conclude that escort driver positions "exist[ in significant numbers] in the national economy, regardless of whether such work exists in the immediate area in which [Nowden] lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work." 42 U.S.C. § 423(d)(2)(A) (2006) ("For purposes of the preceding sentence (with respect to any individual), `work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country."); see also Hall, 109 F.3d at 1259-60; Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs); Oxner v. Chater, 103 F.3d 135, 135 (8th Cir. 1996) (per curiam) (1,000 jobs in area, 5,000 jobs in state, and 200,000 jobs in national economy).
Consequently, regardless of whether the vocational expert's testimony about the document preparer and telephone quotation clerk positions conflicted with the DOT, the ALJ's determination is supported by substantial evidence on the basis of the expert's testimony regarding the escort driver position. Any error with respect to the other two positions is harmless. See Young v. Apfel, 221 F.3d 1065, 1070 (8th Cir. 2000) (even if the vocational expert did not rebut the DOT definitions, the ALJ identified other positions which the claimant could perform).
Nowden also contends that the ALJ failed to include one of her important limitations in the residual functional capacity determination. Specifically, Nowden argues that, "[i]n light of the uncontrolled nature of her insulin-dependent diabetes mellitus," the residual functional capacity determination should have included her need "to take unscheduled breaks to, inter alia, check her blood-sugar and administer insulin injections."
The problem with Nowden's argument is that her need to take unscheduled breaks turns on her need to respond to her uncontrolled diabetes.
Nowden also attacks the ALJ's residual functional capacity determination on the grounds that it was not supported by medical evidence derived from a treating or examining physician. See Mathis v. Astrue, No. 08-3027, 2009 WL 2496684, at *2 (W.D. Ark. Aug. 13, 2009) ("Of particular concern to the undersigned is the fact that the record does not contain an RFC assessment from any of plaintiff's treating physicians.") (citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)). In certain circumstances, the Eighth Circuit has held that an ALJ's reliance on a mere consulting physician's opinion is not substantial evidence. See, e.g., Laurer v. Apfel, 245 F.3d 700 (8th Cir. 2001); Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir. 1988); Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992). However, those decisions "involve situations where the consulting physician's opinion contradicts that of the treating physician." Richardson v. Astrue, No. 3:10CV00147, 2011 WL 4479215, at *3 (E.D. Ark. Sept. 28, 2011). There is no conflicting evidence from a treating or examining physician in the instant case. Furthermore, the residual functional capacity determination is based upon all of the evidence—although some medical evidence must support the determination. Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002). Therefore, even without a treating physician's opinion, an ALJ's residual functional capacity determination may be supported by substantial evidence where it is based upon the medical records, observations of reviewing physicians, the claimant's own testimony, and other evidence in the record. Id.; Richardson, 2011 WL 4479215, at *3; see also Sultan, 368 F.3d at 863 (The ALJ has a duty to develop the record by seeking the opinion of a treating or examining physician "only if the available evidence does not provide an adequate basis for determining the merits of the disability claim." ) (citing 20 C.F.R. §§ 416.912(e), 416.919a(b)); Hight v. Shalala, 986 F.2d 1242, 1244 n.1 (8th Cir. 1993) ("We have never held that the opinions of consulting physicians cannot constitute substantial evidence; indeed, such a holding would make the provisions allowing the Secretary to require claimants to submit to consultative exams, 20 C.F.R. §§ 404.1517-.1518, meaningless."). Here, the ALJ relied upon the opinions of reviewing physicians; Nowden's testimony about her condition, abilities, and past work experience as a waitress and at home; and Nowden's medical records. (Tr. 14-17) Thus, there is substantial evidence in the record to support the ALJ's decision.
For the foregoing reasons, the Commissioner is affirmed.
IT IS SO ORDERED.