Lynn v. Social Security Administration, No. 3:2016cv00313 - Document 21 (E.D. Ark. 2017)

Court Description: MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner. Plaintiff's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 6/26/2017. (jak)
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Lynn v. Social Security Administration Doc. 21 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION DEBRA LYNN, on behalf of Kerry Dale Lynn v. PLAINTIFF NO. 3:16-cv-00313 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Debra Lynn, on behalf of her lat e fat her Kerry Dale Lynn (“ Lynn” ), began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , plaint iff challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon findings made by an Administ rat ive Law Judge (“ ALJ” ). Plaint iff maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole and offers t wo reasons why. 1 Plaint iff first maint ains t hat Lynn’ s residual funct ional capacit y was erroneously assessed. Plaint iff so maint ains because t he record does not cont ain a physical residual funct ional capacit y assessment from a t reat ing or examining physician, Lynn’ s morbid obesit y was not adequat ely considered, and t here is no evidence he could sit for long periods. The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). 1 Dockets.Justia.com The ALJ is required t o assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record, but t he assessment must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). As a part of making t he assessment , t he ALJ must evaluat e t he claimant ’ s subj ect ive complaint s. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ does so by considering t he medical evidence and evidence of t he claimant 's daily act ivit ies; t he durat ion, frequency, and int ensit y of his pain; t he dosage and effect iveness of his medicat ion; precipit at ing and aggravat ing fact ors; and f unct ional rest rict ions. See Id. at 1218 [cit ing Polaski v. Heckler, 739 F.2d 1320 (8t h Cir. 1984)]. Lynn alleged in his applicat ion for disabilit y insurance benefit s t hat he became disabled on Sept ember 30, 2009. Alt hough t hat dat e would t ypically denot e t he beginning of t he relevant period, t he ALJ found t he following: Claimant ’ s alleged onset dat e is Sept ember 30, 2009. However, claimant has filed prior applicat ions. The claimant filed a prior applicat ion t hat result ed in an unfavorable decision before an administ rat ive law j udge on Sept ember 27, 2013. There is no basis t o reopen t he prior applicat ion and administ rat ive finalit y applies t hrough Sept ember 27, 2013. Accordingly, any discussion of t he evidence prior t o t hat t ime is for hist orical and cont ext ual purposes only and does not const it ut e reopening. See Transcript at 21. Plaint iff does not challenge t he finding, and it is support ed by subst ant ial evidence on t he record as a whole. Thus, t he relevant period is from Sept ember 28, 2013, t hrough November 12, 2015, i.e., t he dat e of t he ALJ’ s decision. Evidence prior t o Sept ember 28, 2013, will only be considered for hist orical purposes. 2 Plaint iff has ably summarized t he evidence in t he record, see Document 19 at CM/ ECF 3-17, and t he Commissioner does not challenge t he summary. The Court accept s t he summary as a fair summat ion of t he evidence. The summary will not be reproduced, save t o not e evidence germane t o Lynn’ s morbid obesit y and his abilit y t o sit for long periods as t hose issues form t he basis of plaint iff’ s challenge t o t he ALJ’ s assessment . On November 2, 2009, an MRI was t aken of Lynn’ s cervical spine. See Transcript at 326-328. The result s revealed mild degenerat ive disc changes in his cervical spine but no significant cent ral canal narrowing. When Dr. Jeremy Swymn, M.D., (“ Swymn” ) saw Lynn one week lat er, Swymn observed t hat t he MRI showed no nerve impingement . See Transcript at 330. Lynn sought medical at t ent ion on several occasions bet ween Sept ember 2, 2009, and Sept ember 28, 2013, for complaint s t hat included chest pain, short ness of breat h, and pain and swelling in his lower ext remit ies. See Transcript at 684-686, 688-690, 650652, 642-646, 627-632, 615-620, 572-580, 581-583, 558-567, 543-552, 526-536, 892-293, 522-523, 507-515, 491-498, 436-446, 407-413, 404-405, 387-388. For inst ance, on March 19, 2010, he present ed t o a hospit al complaining of pain and swelling in his lower ext remit ies. See Transcript at 684-690. A hist ory of Meniere’ s disease was not ed, and he was diagnosed wit h leg edema and venous insufficiency. In August of 2012, he present ed t o t he hospit al complaining of chest pain and short ness of breat h. The result s of an EKG were normal, his t roponins were negat ive, and a chest x-ray was unremarkable. See Transcript at 412. Obst ruct ive sleep apnea syndrome was lat er diagnosed, and use of a CPAP was recommended. 3 Aft er Sept ember 28, 2013, t he record reflect s t hat Lynn cont inued t o seek medical at t ent ion for complaint s t hat included chest pain and short ness of breat h. Lynn saw Dr. John House, M.D., (“ House” ) on January 16, 2014, for ot her impairment s. See Transcript at 337-341, 770-774. While in t he examinat ion room, Lynn experienced a syncopal event . Lynn was t ransport ed t o a local hospit al and admit t ed for t he syncope event and abdominal pain. He was released lat er t hat same day aft er t est result s were wit hin normal limit s. See Transcript at 344. House saw Lynn again on January 22, 2014. See Transcript at 766-770. House’ s progress not es cont ain t he following not at ion: ... [Lynn] was seen here last week and had syncopal event . Was sent t o t he ER by ambulance. Was admit t ed for “ severe dehydrat ion.” Not es t hat t hey did ult rasound of heart , neck, and legs. No blood clot s. Had t wo EKGs which were normal. Says t hat t hey did CT of head, neck, and low back. The only finding was chronic sinusit is. Says t hat t hey st opped lasix and spironolact one. Also st opped met formin due t o CT. Has rest art ed met formin. See Transcript at 768. Lynn cont inued t o see House or his associat es t hroughout 2014. See Transcript at 762-766 (03/ 11/ 2014), 759-762 (04/ 23/ 2014), 755-759 (05/ 22/ 2014), 751-755 (06/ 17/ 2014), 747-751 (07/ 31/ 2014), 743-747 (09/ 30/ 2014). The progress not es from t he examinat ions are rout ine. For inst ance, when Lynn present ed on May 22, 2014, he report ed t hat he had been exercising but was sore from “ t rying t o lift light weight .” See Transcript 757. Upon examinat ion, he exhibit ed normal t one and mot or st rengt h and exhibit ed normal movement in all of his ext remit ies. Diabet es, hypert ension, and a hist ory of pulmonary embolus were diagnosed, and medicat ion was prescribed. 4 Lynn sought medical at t ent ion from ot her medical care providers during 2014. See Transcript at 699-704 (06/ 03/ 2014), 731-734 (08/ 07/ 2014), 728 (08/ 07/ 2014), 740743 (10/ 14/ 2014), 859-865 (12/ 07/ 2014). The progress not es from t hose examinat ions are rout ine and shed lit t le light on his post ural limit at ions. It is not ewort hy t hat during t he December 7, 2014, examinat ion, he report ed t hat he was only experiencing mild soreness in his right calf. See Transcript at 860. In 2015, Lynn sought medical at t ent ion for complaint s t hat included sinusit is and painful feet . See Transcript at 919-922 (01/ 06/ 2015), 939-940 (06/ 02/ 2015), 938 (06/ 23/ 2015), 926-930 (06/ 30/ 2015), 969-973 (08/ 04/ 2015), 942 (08/ 11/ 2015). The progress not es from t he examinat ions are also rout ine. The not es reflect t hat he cont inued t o receive medicat ion for his sinusit is and was prescribed medicat ion for t he cracking and dryness in his heels. It is wort h not ing t hat he was seen by an advanced pract ice nurse at House’ s office on January 6, 2015, and was observed t o be “ ambulat ing normally.” See Transcript at 921. Upon examinat ion, Lynn had normal t one and mot or st rengt h and had normal movement in all of his ext remit ies. On Sept ember 18, 2015, Lynn sought medical at t ent ion for complaint s t hat included abdominal and low back pain. See Transcript at 1021-1026. Pancreat it is was diagnosed. He was subsequent ly diagnosed wit h pancreat ic cancer, see Transcript at 1051, and died from t he illness on June 17, 2016, see Transcript at 1706. An assessment was made of Lynn’ s physical residual funct ional capacit y by st at e agency physicians. See Transcript at 72-78, 86-92, 100-107, 116-123. They opined t hat he was capable of sit t ing for about six hours in an eight hour workday and was t herefore capable of performing light work wit h some addit ional post ural limit at ions. 5 The record cont ains a hist ory of Lynn’ s report able earnings for t he years 1998 t hrough 2010. See Transcript at 211-212. The hist ory reflect s t hat he had regular report able earnings t hrough 2010. Lynn complet ed a series of document s in connect ion wit h his applicat ion for disabilit y insurance benefit s. See Transcript at 232-242, 243-245, 249-256. In a pain report , he represent ed t hat he experienced const ant pain in his legs. He could only sit for about fift een minut es at one t ime before he began t o experience pain, and not hing ot her t han medicat ion helped relieve t he pain. He was t aking Coumadin and Lasix for venous insufficiency. In a funct ion report , Lynn represent ed t hat his daily act ivit ies included eat ing meals, wat ching t elevision, t ext ing or playing games on his t elephone, and going out side when t he weat her permit t ed. He could not at t end t o his own personal care but could prepare simple meals and do some house and yard work. He could shop and did so once a week for about fort y-five minut es at a t ime. His hobbies and int erest s included wat ching t elevision and playing games on his t elephone, act ivit ies he did daily and managed well. Lynn t est ified during t he administ rat ive hearing. See Transcript at 41-59. He was born on December 12, 1972, and graduat ed from high school. He st ood sevent y inches t all and weighed 412 pounds. He was able t o, and did, drive an aut omobile. He worked unt il somet ime in 2010 when he st opped working because of st ress and pain in his neck and legs. He had venous insufficiency in his legs which gave rise t o difficult ies st anding, walking, and sit t ing. He was t aking Lasix, and it helped reduce t he fluid in his legs. Lynn could at t end t o his own personal care and could perform some household chores. 6 He would occasionally ent ert ain friends and would at t end church when he could. When asked if he could work a j ob t hat combined st anding and sit t ing for eight hours, he t est ified t hat he did not know if he could perform t he requirement s of such work because of t he pain in his legs. He t ypically did not sit for more t han t hirt y t o fort y minut es at a t ime. When wat ching t elevision or sit t ing for prolonged periods, he would alt ernat e bet ween sit t ing and st anding. The heaviest he ever weighed was approximat ely 492 pounds. The ALJ found at st ep t wo of t he sequent ial evaluat ion process t hat Lynn had severe impairment s in t he form of “ degenerat ive disc disease of t he cervical and lumbar spine, diabet es mellit us, hypert ension, obst ruct ive sleep apnea, Meniere’ s disease, morbid obesit y, GERD, and lower ext remit y venous insufficiency. See Transcript at 24. The ALJ assessed Lynn’ s residual funct ional capacit y and found t hat he could perform sedent ary work wit h t he following addit ional limit at ions: ... claimant can st and and or walk for no more t han t wo hours of an eight hour workday; ... cannot climb ladders, ropes or scaffolds; ... cannot perform balancing dut ies in t he workplace; ... can perform no more t han occasional climbing of ramps or st airs; ... can no more t han occasionally st oop, kneel, crouch[], or crawl; ... cannot be exposed t o unprot ect ed height s, or hazards in t he workplace; and ... cannot operat e foot cont rols wit h t he lower ext remit ies. See Transcript at 25. In making t he foregoing findings, t he ALJ evaluat ed all of t he evidence, including t he opinions offered by t he st at e agency physicians. The ALJ gave t he st at e agency physicians’ opinions lit t le weight because t he physicians failed t o consider t he combined effect s of Lynn’ s impairment s and because t he physicians did not hear his t est imony regarding his abilit y t o st and and walk. 7 Lynn had post ural limit at ions caused by venous insufficiency and degenerat ive disc disease. The ALJ incorporat ed limit at ions for t he impairment s int o t he assessment of Lynn’ s residual funct ional capacit y but found t hat he could perform t he sit t ing requirement s of sedent ary work. The ALJ could find as he did as subst ant ial evidence on t he record as a whole support s his considerat ion of t he evidence and his assessment of Lynn’ s residual funct ional capacit y. The Court so finds for t he following reasons. First , t he ALJ adequat ely considered t he medical evidence relevant t o Lynn’ s post ural limit at ions. For inst ance, t he ALJ properly not ed t he result s of MRI t est ing, result s t hat showed Lynn t o have mild degenerat ive disc disease wit h no nerve impingement . At a December of 2014 examinat ion, Lynn represent ed t hat he had only mild soreness in his right calf. The ALJ properly not ed t hat in January of 2015, Lynn was observed t o be ambulat ing normally. Lynn also exhibit ed normal t one and mot or st rengt h and normal movement in all of his ext remit ies. The ALJ not ed t he evidence relevant t o Lynn’ s excessive weight , evidence t hat reflect s his Body Mass Index (“ BMI” ) was in t he range of fift y-six t o fift y-eight or wit hin t he morbidly obese range. The ALJ addit ionally not ed t he evidence relevant t o Lynn’ s leg pain, pain at t ribut ed primarily t o venous insufficiency. Second, t he ALJ adequat ely considered t he non-medical evidence relevant t o Lynn’ s post ural limit at ions. The ALJ could and did properly not e t hat Lynn’ s daily act ivit ies were inconsist ent wit h an inabilit y t o perform work-relat ed act ivit ies. Specifically, t he ALJ could and did not e t hat Lynn shopped, did some house work, wat ched t elevision, drove an aut omobile, sat wit h family and friends while t alking, and at t ended church when he could. The ALJ could and did not e, int er alia, t hat no 8 physician ever imposed any rest rict ions upon Lynn’ s act ivit ies. Addit ionally, t he ALJ could and did not e t hat Lynn was not compliant wit h t he use of a CPAP, but Lynn’ s medicat ions were helpful in t reat ing his sympt oms. For inst ance, Lynn was using Coumadin and Lasix for his venous insufficiency, and t he medicat ions appear t o have helped reduced t he fluids in his legs. The ALJ could and did not e t hat Lynn’ s sympt oms were t reat ed conservat ively, specifically not ing t hat surgery was never recommended. Plaint iff challenges t he assessment of Lynn’ s residual funct ional capacit y because t he record does not cont ain a physical assessment from a t reat ing or examining physician and cit es t he Court t o Nevland v. Apfel, 204 F.3d 853 (8t h Cir. 2000), in support of t he proposit ion. 2 Alt hough it is t rue t hat t here is no assessment of Lynn’ s physical abilit ies by a t reat ing or examining physician, and such an assessment would have been helpful, a remand is not warrant ed because t he record cont ains ample evidence for t he ALJ t o have made an informed decision. 3 A fair reading of t he ALJ’ s decision reflect s t hat he relied upon t he relevant evidence in making t he assessment , and t he assessment is consist ent wit h t he evidence. It is also wort h observing t hat t he ALJ is not required t o link each part of t he assessment wit h a specific medical opinion. See Mart ise v. Ast rue, 641 F.3d 909 (8t h Cir. 2011). Moreover, unlike in Nevland v. Apfel, t he ALJ in t his inst ance did not base his decision solely on t he opinions of t he st at e agency physicians. Inst ead, t he ALJ discount ed t heir opinions and ult imat ely det ermined t hat Lynn was more limit ed t han what t hey opined. In Nevland v. Apfel, the Court of Appeals reversed the ALJ’s decision because he relied solely upon the opinions of non examining, non treating physicians in determining that a claimant was not disabled. 3 “[T]here is no requirement that a [residual functional capacity] finding be supported by a specific medical opinion,” see Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016), and the ALJ has the discretion whether to order a consultative examination, see Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). 2 9 Plaint iff challenges t he assessment of Lynn’ s residual funct ional capacit y because his morbid obesit y was not adequat ely considered. The record est ablishes ot herwise. The ALJ found Lynn’ s morbid obesit y t o be a severe impairment at st ep t wo; considered his morbid obesit y as “ an aggravat ing fact or t o any ot her severe impairment t hat in combinat ion would meet a list ing,” see Transcript at 24; t hen considered his morbid obesit y in conj unct ion wit h his ot her impairment s. The ALJ found, and subst ant ial evidence on t he record as a whole support s t he finding, t hat Lynn had a BMI in excess of fift y-six but had at t empt ed exercise and at t ended a weight loss seminar. There is not hing t o suggest t he ALJ’ s considerat ion of t he evidence was flawed or was somehow inadequat e. Plaint iff also challenges t he assessment of Lynn’ s residual funct ional capacit y because t here is no evidence he could sit for long periods. The ALJ could and did properly find, t hough, t hat Lynn was capable of performing t he sit t ing requirement of sedent ary work. The findings and observat ions of t he medical professionals wit h regard t o Lynn’ s gait , st at ion, range of mot ion, and muscle st rengt h and t one were largely unremarkable. When Lynn was seen at House’ s clinic in May of 2014, Lynn report ed having exercised but was sore from “ t rying t o lift light weight .” When Lynn was seen by anot her medical professional in December of 2014, Lynn report ed only mild soreness in his right calf. In January of 2015, an advanced pract ice nurse at House’ s clinic observed t hat Lynn was ambulat ing normally. Moreover, Lynn’ s daily act ivit ies were inconsist ent wit h his assert ion of disabling pain. His act ivit ies included shopping, doing some house work, wat ching t elevision, driving an aut omobile, sit t ing wit h family and friends while t alking, and at t ending church when he could. 10 The governing st andard in t his case, i.e., subst ant ial evidence on t he record as a whole, allows for t he possibilit y of drawing t wo inconsist ent conclusions. See Culbert son v. Shalala, 30 F.3d 934 (8t h Cir. 1994). In t his inst ance, t he ALJ’ s assessment of Lynn’ s residual funct ional capacit y was not improper. Plaint iff offers a second reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. Plaint iff maint ains t hat t he ALJ’ s hypot het ical quest ion did not incorporat e Lynn’ s morbid obesit y. Test imony from a vocat ional expert is subst ant ial evidence on t he record as a whole only when “ t he t est imony is based on a correct ly phrased hypot het ical quest ion t hat capt ures t he concret e consequences of a claimant ’ s deficiencies.” See Taylor v. Chat er, 118 F.3d 1274, 1278 (8t h Cir. 1997). Thus, t he hypot het ical quest ion must include all t hose impairment s t hat are subst ant ially support ed by t he record as a whole. See Id. The record reflect s t hat a vocat ional expert t est ified during t he administ rat ive hearing. See Transcript at 59-62. The vocat ional expert summarized Lynn’ s past work, and t he ALJ found t hat Lynn could not ret urn t o his past work because it involved great er t han sedent ary work. The ALJ t hen posed a series of hypot het ical quest ions t o t he vocat ional expert , none of which specifically ment ioned Lynn’ s excess weight . The vocat ional expert t est ified t hat a hypot het ical individual wit h Lynn’ s limit at ions could perform work as a t elephone quot e clerk and a t able worker. The ALJ relied upon t he vocat ional expert ’ s answers and found at st ep five t hat t here was ot her work Lynn could perform. The ALJ t herefore found t hat Lynn was not disabled for purposes of t he Social Securit y Act . 11 Subst ant ial evidence on t he record as a whole support s t he ALJ’ s hypot het ical quest ions and his finding at st ep five. It is t rue t hat t he quest ions did not specifically ment ion “ morbid obesit y,” but t he ALJ’ s failure t o include any ment ion of “ morbid obesit y” in t he quest ions does not warrant a remand. The quest ions adequat ely capt ured t he concret e consequences of Lynn’ s deficiencies, deficiencies t hat included his morbid obesit y, and t he limit at ions t hey cause. The individual ident ified in t he hypot het ical quest ions was rest rict ed t o “ sedent ary exert ional work as [t he phrase is] defined in t he Dict ionary of Occupat ional Tit les wit h st anding and walking not more t han t wo hours of an eight -hour day for t he worker,” could not climb ladders, ropes, or scaffolds, could not perform balancing funct ions, and could no more t han occasionally perform t he “ remaining post ural funct ions.” See Transcript at 60. 1 On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Plaint iff’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 26t h day of June, 2017. ________________________________________ UNITED STATES MAGISTRATE JUDGE 1 Plaintiff maintains that Morrison v. Apfel, 146 F.3d 625 (8th Cir. 1998), requires the ALJ to specifically include the claimant’s obesity in formulating a hypothetical question. Her reliance on Morrison v. Apfel in this instance, though, is misplaced because there is no evidence Lynn’s morbid obesity was ever identified as a “major medical issue.” See Burnett v. Colvin, 2014 WL 5795788 at 2 (E.D.Ark. 2014) (Kearney, J.). 12