Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Astrue

August 31, 2010

JERRI JONES, APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, APPELLEE.



Appeal from the United States District Court for the Eastern District of Arkansas.

The opinion of the court was delivered by: Smith, Circuit Judge

Submitted: June 17, 2010

Before SMITH and HANSEN, Circuit Judges, and WEBBER,*fn1 District Judge.

Jerri Jones appeals the district court's*fn2 judgment upholding the Commissioner of Social Security's denial of her application for disability insurance benefits and supplemental security income. Jones argues that this court should reverse the administrative law judge's (ALJ) denial of benefits because (1) the ALJ failed to properly develop the record and consider whether Jones's restrictive pulmonary disorder meets a listing; (2) the ALJ's residual functional capacity (RFC) assessment omitted Jones's mental restrictions and was based on an improper credibility assessment; and (3) the vocational expert's (VE) response to the ALJ's hypothetical identified jobs that went beyond the restrictions stated in the hypothetical without providing a sufficient explanation for the variation. We affirm.

I. Background

Jones sought benefits, claiming disability due to anxiety, depression, pain, and shortness of breath. At the time of the ALJ's decision, Jones was 47 years old and living with her husband and niece. She is a high school graduate and holds a Licensed Practical Nurse (LPN) degree. Her past relevant work experience includes being an LPN and a property manager.

The ALJ followed the required five-step sequence to determine whether Jones was entitled to benefits. See 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g). The ALJ found that Jones had not engaged in substantial gainful activity since the alleged onset date of April 21, 2004. He also found that Jones suffered from arthralgias, polyneuropathy, degenerative disc disease, migraine headaches, hypothyroidism, carpal tunnel syndrom, diabetes mellitus, anxiety disorder, and depressive disorder (NOS). After reviewing the medical exhibits, the ALJ concluded that Jones suffers from a severe impairment within the meaning of the Social Security Regulations but that Jones did not have a "listed" impairment or combination of impairments.

The ALJ then considered whether Jones had the RFC to perform her past work. After considering the medical records and witness testimony, the ALJ found that Jones was not "disabled" and therefore not entitled to benefits. According to the ALJ, "[Jones's] subjective allegations [were] not borne out by the overall evidence and [were] found not to be fully credible to the extent alleged." Based on the VE's testimony, the ALJ also concluded that although Jones is unable to perform her past relevant work as an LPN and property manager, a significant number of jobs in the national economy exist that Jones could perform.

Jones appealed the ALJ's denial of her claim for disability insurance benefits and supplemental security income to the district court, claiming that the ALJ's findings were not supported by substantial evidence on the record as a whole because (1) the ALJ failed to develop the record regarding her restrictive lung disease; (2) the ALJ posed a hypothetical question to the VE that did not include all of Jones's limitations; and (3) the VE's testimony was improper because the VE failed to explain a contradiction with the Dictionary of Occupational Titles (DOT). The district court rejected Jones's arguments. First, the district court held that there was no need for the ALJ to further develop the record because ample medical evidence existed in the record for the ALJ to decide whether Jones was disabled, the evidence supported the ALJ's determination that Jones's restrictive pulmonary disease could be controlled by medication and lifestyle changes, and Jones did not meet a listing. Second, the district court concluded that substantial evidence in the record supported the ALJ's conclusion that Jones had the RFC to perform sedentary work with a fair ability to interact with others in the workplace and that the ALJ properly found that Jones's subjective allegations of pain were not fully credible. Finally, the district court found that the VE's testimony sufficiently supported the ALJ's determination that Jones was not disabled because the VE explained the inconsistency between his testimony and the DOT.

II. Discussion

On appeal, Jones argues that this court should reverse the ALJ's decision for three reasons: (1) the ALJ failed to properly develop the record and consider whether Jones's restrictive pulmonary disease meets a listing; (2) the ALJ's RFC assessment, which he incorporated into the hypothetical that he posed to the VE, erroneously omits Jones's mental restrictions and is based on an improper credibility assessment; and (3) the VE's response to the hypothetical question identified jobs beyond the restrictions stated in the hypothetical, and the VE failed to provide a sufficient explanation for the variation.

"This court reviews de novo a district court decision upholding the denial of social security benefits." Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010) (internal quotations and citation omitted). We "will uphold the Commissioner's decision if it is supported by substantial evidence on the record as a whole." Id. (internal quotations and citation omitted). We define "substantial evidence" as "less than a preponderance but . . . enough that a reasonable mind would find it adequate to support the conclusion." Id. (internal quotations and citation omitted). We must therefore "consider the evidence that supports the Commissioner's decision as well as the evidence that detracts from it." Id. (internal quotations and citation omitted). We may not reverse the Commissioner merely because "we would have come to a different conclusion." Id. (internal quotations and citation omitted). We must affirm the Commissioner's denial of benefits if, after reviewing the record, "we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings." Id. (internal quotations and citation omitted).

In the present case, "the ALJ applied the five-step sequential evaluation in the social security regulations." Id. (citing 20 C.F.R. § 404.1520(a)(4)(i)-(v) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)(i)-(v) (supplemental security income); Bowen v. Yuckert, 482 U.S. 137, 140--42 (1987); Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008)). Under this five-step process,

[t]he ALJ first determines if the claimant is engaged in substantial gainful activity. If so, the claimant is not disabled. Second, the ALJ determines whether the claimant has a severe medical impairment that has lasted, or is expected to last, at least 12 months. Third, the ALJ considers the severity of the impairment, specifically whether it meets or equals one of the listed impairments. If the ALJ finds a severe impairment that meets the duration requirement, and meets or equals a listed impairment, then the claimant is disabled. However, the fourth step asks whether the claimant has the residual functional capacity to do past relevant work. If so, the claimant is not disabled. Fifth, the ALJ determines whether the claimant can perform other jobs in the economy. If so, the claimant is not disabled.

Id. at 537.

A. Adequate Development of the Record

Jones first argues that the ALJ erred at the third step of the five-step evaluation by finding that she has the RFC to perform sedentary work because she suffers from restrictive lung disease with asthma. According to Jones, pulmonary function tests performed in January 2007 revealed a forced expiratory volume (FEV1) of 1.57 or 54 percent of predicted value; and, in February 2007, she was treated at the emergency room for difficulty breathing, where faint wheezing was noted bilaterally. She was diagnosed with chronic obstructive pulmonary disease (COPD). As a result, Jones maintains that her pulmonary function testing indicates an impairment that is close to the listing level severity for chronic pulmonary insufficiency under 20 C.F.R. Part 404, Subpart. P, Appendix 1, § 3.02(A). She notes that Dr. Henry K. Hamilton, a consulting, board-certified orthopedic surgeon, testified that while in his opinion Jones did not meet a listing because of her orthopedic problem, it was possible that she met a listing for pulmonary impairment; however, she claims that the ALJ never investigated whether she met this listing. Jones also argues that if the record was unclear regarding whether she met a listing for chronic pulmonary insufficiency, the ALJ was obligated to recontact her doctors for additional evidence or clarification; therefore, the ALJ should have ordered a consultative medical examination with complete pulmonary function testing.

"A disability claimant is entitled to a full and fair hearing under the Social Security Act." Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010)(internal quotations and citation omitted). Where "the ALJ's determination is based on all the evidence in the record, including the medical records, observations of treating physicians and others, and an individual's own description of his limitations," the claimant has received a "full and fair hearing." Id. (internal quotations and citation omitted). "The ALJ is required to order medical examinations and tests only if the medical records presented to him do not give sufficient medical evidence to determine whether the claimant is disabled." Id. (internal quotations and citation omitted).

While the ALJ has an independent duty to develop the record in a social security disability hearing, the ALJ is not required "to seek additional clarifying statements from a treating physician unless a crucial issue is undeveloped." Stormo [v. Barnhart], 377 F.3d [801,] 806 [(8th Cir. 2004)]. The Commissioner's regulations explain that contacting a treating physician is necessary only if the doctor's records are "inadequate for us to determine whether [the claimant is] disabled" such as "when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§404.1512(e), 416.912(e).

Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005).

"For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria." Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004) (internal quotations and citation omitted). Furthermore, the question is whether the ALJ "consider[ed] evidence of a listed impairment and concluded that there was no showing on th[e] record that the claimant's impairments . . . m[et] or are equivalent to any of the listed impairments." Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal quotations omitted). "The fact that the ALJ d[oes] not elaborate on this conclusion does not require reversal [where] the record supports h[is] overall conclusion." Id.

Here, 20 C.F.R. Part 404, Subpart. P, Appendix 1, § 3.02(A) requires that, for Jones to meet the listing for chronic pulmonary insufficiency, her FEV1 must be 1.35 or less.*fn3 Jones admits that pulmonary function tests performed in January 2007 revealed an FEV1 of 1.57 or 54 percent of predicted value. And, even though the ALJ did not specifically mention § 3.02(A), he did consider evidence of the purported impairment, stating:

The claimant has alleged disability due to chronic obstructive pulmonary disease (COPD), asthma, and bronchitis. She presented to the Regional Medical Center of NEA on December 18, 2004, with complaints of shortness of breath. She was diagnosed with bronchitis and given medication and discharged. No aggressive intervention or definitive diagnostic testing was done (Exhibit 2F).

X-rays of the claimant's chest done October 11, 2005, was noted as a negative study. CT of her chest done March 21, 2006, is supportive that Dr. Nicell felt it was a normal study (Exhibits 8F, 14F).

The claimant presented to St. Bernard's Medical Center on January 18, 2007, with complaints of cough and shortness of breath; however, x-rays of her chest were noted "essentially negative examination. Stable-appearing since the prior study" (Exhibit 14F). The claimant had a pulmonary function test on January 24, 2007, at St. Bernard's Medical Center supportive of moderate to severe restricted defect with a FEC of 1.89 or 50% of predicted value (Exhibit 14F). She was diagnosed with dyspnea and chronic obstructive pulmonary disease (COPD) on February 2, 2007. Radiology report dated February 2, 2007, noted no acute disease seen and history of asthma and shortness of breath (Exhibit 12F).

The claimant was seen by Dr. Linda Gilliam on January 18, 2007, for complaints of shortness of breath and treated with Duoneb which resolved her wheezing (Exhibit 18F). She was put on several medications and counseled to use gum or lozenges if necessary, but to absolutely quit smoking (Exhibit 18F). Her diagnosis was asthma (NOS). Chest was clear to auscultation and noted as symmetric expansion and no dullness in percussion on February 5, 2007. She was diagnosed with restrictive pulmonary disease on this date and again counseled to quit smoking and to avoid secondary smoke.

Follow-up records from Dr. Gilliam dated January 18, 2008, are supportive of good results from her treatment. Chest inspection was symmetric expansion, no percussion dullness, no tenderness to palpation, rare late expiratory wheeze with forced expiration, no rhonchi or rales, and peripheral vascular system pulses 2 and symmetrical (Exhibit 19F).

I find that a reasonable conclusion can be reached that the frequency, intensity, and duration of the claimant's pulmonary symptomatology is fairly well controlled with medication and would not more than minimally affect her ability to carry on gainful activity at the sedentary exertional level.

In light of Dr. Gilliam's reports, the ALJ had no need to contact Dr. Gilliam, the treating physician, because there was no ambiguity to resolve in her reports, and the report contained all the necessary information, including the results of diagnostic testing. Furthermore, Dr. Gilliam reported on January 18, 2008, that treatment was yielding good results, and she also stated that medication was resolving Jones's wheezing. Moreover, Dr. Gilliam counseled Jones twice to stop smoking. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997). There is also no evidence in the record that Dr. Gilliam ever "restricted [Jones's] activities because of her pulmonary status." Id.

And, Dr. Hamilton's opinion that it was "possible" that Jones met a listing with her pulmonary impairment is not controlling because Dr. Hamilton is an orthopedic specialist not qualified to make ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.