Derone Combs v. Michael J. Astrue , 243 F. App'x 200 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3474
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Derone Combs, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
1
Michael J. Astrue, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: April 13, 2007
Filed: July 30, 2007
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Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.
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PER CURIAM.
Derone Combs filed applications for disability insurance benefits and
supplemental security income (SSI) benefits, which were denied by the Social
Security Administration (SSA). Combs sought review before two administrative law
judges (ALJs), who each conducted a hearing; the second ruled Combs was not
1
Michael J. Astrue has been appointed to serve as Commissioner of Social
Security and is substituted as appellee pursuant to Rule 43(c)(2) of the Federal Rules
of Appellate Procedure.
entitled to benefits. The SSA Appeals Council denied review, rendering the ALJ’s
decision final. Combs sought review in district court,2 which affirmed the decision of
the agency. Combs appeals, and we affirm.
I
On July 24, 2000, Combs was burned by steam while working as a dishwasher.
He was seen three times for physical therapy. After the burn healed, he continued to
feel pain consistent with reflex sympathetic dystrophy3 (RSD), so his physical
therapist referred him to a physician.
Two medical reports from August 2000 state that although Combs’s burn had
healed, he continued to complain of sharp pain over the area of the burn, swelling and
cold feelings in his hand and increased pain with changes in the ambient temperature.
The doctor diagnosed possible RSD of the right upper extremity and tried several
treatments. There is no record of his receiving medical care for his condition between
this time and late 2003, when he was seen for forty minutes by a physician. He
reported attacks of pain two to three times per week, during which his arm was
swollen and extremely tender. On physical examination, no abnormalities were noted.
The doctor was not able to verify his complaints of episodic pain, and recommended
he be limited to lifting no more than twenty-five pounds. No other limitations were
noted. He was seen by another doctor on December 23, 2003, requesting medication
for RSD. He appeared uncomfortable on physical examination, and both arms were
2
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
3
RSD is a “series of changes caused by the sympathetic nervous system,
marked by pallor or rubor, pain, sweating, edema, or osteoporosis, following muscle
sprain, bone fracture, or injury to nerves or blood vessels.” Dorland’s Illustrated
Medical Dictionary 560 (29th ed. 2000).
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tender to the touch. His doctor prescribed Elavil (a prescription antidepressant) and
ibuprofen. The doctor also recommended a referral to a pain clinic.
Combs was seen at a pain clinic on January 19, 2004. After an examination the
doctor wrote there was no clear diagnosis: “I cannot certainly make a diagnosis of
reflex sympathetic dystrophy or complex regional pain syndrome.” The doctor noted
a flat affect and possible depression. On April 21, 2004, he again saw the pain clinic
doctor, who noted Combs’s symptoms and signs were consistent with complex
regional pain syndrome (type I) (another term for RSD) and depression.
Combs was seen for an intake evaluation at a community mental health center
on March 16, 2004. He had no prior psychiatric care or counseling and referred
himself to the center. He indicated being restless all night, was tired, and it became
difficult for him to get up in the morning. His appetite declined and his energy level
was low. He indicated his concentration and memory were poor. He was scheduled
for individual therapy and for an appointment with a psychiatrist. On June 23, 2004,
a doctor described him as still symptomatic with “major depressive disorder,” with no
additional detail, and prescribed Zoloft.
An undated medical source statement from an unidentified health-care provider
was found in Combs’s record. The statement reflects diagnoses of major depressive
disorder and RSD, and a global assessment of functioning (GAF) of 60. This provider
indicated he had a “medical issue that affects ability to work/function.” He had
“marked” limitations in completing a normal workday and working at a consistent
pace. He had slight limitations in working with others “due to pain.” He had
“moderate” limitations in the ability to be aware of hazards.
Combs filed applications for benefits on October 2, 2003. After his applications
were denied, he requested a hearing. He also appeared and testified before ALJ
Thomas Gaye on August 12, 2004. When Judge Gaye learned Combs was claiming
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a mental as well as a physical impairment, he adjourned the hearing and said a mental
status examination would be ordered. Judge Gaye also recommended Combs obtain
the services of an attorney.
Combs was hospitalized for depression August 13-15, 2004. As part of his
application for Social Security benefits, Combs was seen for a functional capacity
evaluation at the Genesis Valley Fair rehabilitation clinic in Davenport, Iowa, on
August 16, 2004. During the evaluation, he was able to lift sixty-five pounds and
showed no limitations in his ability to sit, stand, crawl, kneel, crouch, or squat. He
displayed noted muscle definition in his arms without any apparent disuse atrophy.
On a thirteen-point consistency checklist, part of the evaluation, Combs produced
results inconsistent with his giving maximum effort on nine of the points, when just
three inconsistencies are ordinarily enough to indicate overall the subject is providing
non-maximum or inconsistent effort on the evaluation. He was scheduled to complete
the evaluation on the 17th, but did not show up. It was noted he was uncooperative in
complying with test requirements. His pain behaviors indicated to the tester that while
pain may be present, his behavior was the greatest limitation. Based upon his
performance during the portions of the evaluation he attended, the physical therapist
described his limitations as self-imposed. Throughout the period of claimed
disability, Combs was able to care for a small child, clean the house, and occasionally
cut the lawn with a self-propelled mower.
Combs appeared on October 21, 2004, before ALJ John Sandbothe. He told the
ALJ he had not been able to find an attorney to represent him, so the hearing
proceeded pro se. The ALJ concluded Combs was not credible when he claimed his
pain was so severe he could not work: “[C]laimant’s allegations of disability are not
consistent with the medical signs and findings or treating and examining physician
reports and are therefore not credible, as the medical evidence of record demonstrates
that his reflex sympathetic dystrophy is largely under control, as shown by treatment
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notes showing only very occasional acute exacerbation of symptoms.” The ALJ noted
his RSD was controlled with medications and required only occasional treatment.
In his decision, the ALJ found Combs has the residual functional capacity
(RFC)4
to lift and carry ten pounds frequently and twenty pounds occasionally,
and he can sit, stand and/or walk at least six hours of a work day. He can
occasionally balance, stoop, crouch, kneel, crawl, and climb. Mentally
and emotionally, due to low academic achievement, he is limited to
simple, routine, repetitive work, and is limited to a regular work pace.
He has no other significant limitations.
At the last step of the five-step sequential evaluation, the ALJ found Combs
able to perform a significant number of light and sedentary jobs existing in the
national economy. At the hearing, a vocational expert testified his limitations would
allow for wide range of unskilled light and sedentary occupations.
Combs appealed. The district court upheld the decision, finding no fault with
the ALJ’s credibility finding. “Although the evidence in this case establishes the
existence of impairments severe enough to advance the case beyond the second step
of the sequential evaluation, the impairments are not severe enough to prevent the
performance of all substantial gainful activity . . . . In this case, the ALJ found that
Combs’s pain limits him to the performance of light and sedentary work as defined
in the regulations.” The district court found the Commissioner’s decision supported
by substantial evidence on the record as a whole, and held the ALJ’s findings to have
4
The residual functional capacity is the most an individual can do despite the
combined effect of all of their credible limitations. 20 C.F.R. §§ 404.1545, 416.945
(2006). The residual functional capacity is based on all of the relevant evidence in the
case record, and is assessed at step four of the sequential evaluation. Id.-5-
been “well within the zone of reasonable choices that this Court will not disturb.”
This appeal followed.
II
To establish entitlement to benefits, a claimant must show he is unable to
engage in any substantial gainful activity by reason of a medically determinable
impairment which has lasted or can be expected to last for a continuous period of not
less than twelve months. 42 U.S.C. § 423(d)(1)(A). In Barnhart v. Walton, 535 U.S.
212, 215 (2002), the Supreme Court upheld the Social Security Commissioner’s
interpretation of this statutory definition, which requires the disability, and not only
the impairment, to have existed or be expected to exist for twelve months.
We review de novo the decision of the district court affirming the agency’s
denial of benefits. Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007). Our task is
to determine whether the ALJ’s findings are supported by substantial evidence on the
record as a whole. Id. Substantial evidence is evidence a reasonable person would
consider adequate to support the ALJ’s conclusion. Id. If the record contains
insufficient evidence to support the outcome, we will reverse the ALJ’s decision, but
we will not reverse merely because we may have reached a different conclusion. Id.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, we must affirm the decision of the Commissioner. Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000).
The evaluation of disability in a Social Security claim is a five-step process.
SSR 86-8, 20 C.F.R. §§ 404.1520, 416.920. The claimant must show he is not
engaging in substantial gainful activity and that he has a severe impairment. Those
are steps one and two. Id. Consideration must then be given, at step three, to whether
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the claimant meets or equals a listing. Id. Step four concerns whether the claimant
can perform his past relevant work; if not, at step five, the ALJ determines whether
jobs the claimant can perform exist in significant numbers.
Combs argues the ALJ failed to fully develop the record, erred in following set
rules in the evaluation of RSD, and erred in his posing of a hypothetical to a
vocational expert. The ALJ did find he suffered from RSD and depression at step
three; the dispute here centers on steps four and five: whether he suffers from them
to a sufficient degree to keep him from working at most jobs.
A. Developing the Record
Combs argues the ALJ failed to develop the record as to his depression and
physical limitations, a duty particularly important because he was appearing pro se.
But Combs bears a heavy burden in showing the record has been inadequately
developed. He must show both a failure to develop necessary evidence and unfairness
or prejudice from that failure. Haley v. Massanari, 258 F.3d 742, 749-750 (8th Cir.
2001) (holding “reversal due to failure to develop the record is only warranted where
such failure is unfair or prejudicial”; ALJ may issue decision without obtaining
additional evidence if existing evidence provides sufficient basis for decision (internal
quotes and citations omitted)).
The Commissioner notes all of Combs’s medical records – including those
related to the small number of times he received psychiatric evaluation – were in the
record, and treated as accurate. The Commissioner argues his record is complete – as
he has identified no missing documents – and asserts failure to show any prejudice
from any missing records.
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The Commissioner acknowledges the psychiatric examination requested by the
first ALJ was not completed. But while the record of Combs’s psychiatric history was
thin when the exam was requested, the Commissioner argues it was subsequently
supplemented with records from the community mental health center, and the second
ALJ felt comfortable making his decision on that record. 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. Barrett
v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994); 20 C.F.R. §§ 404.1519a(b) and
416.919a(b) (2006).
Combs argues the record is “replete” with references to his depression. The
record does mention it several times, but described him as “sad” or with “flat affect.”
While the record may show he was depressed – and the ALJ did find he was –
nowhere does the record indicate he is suffering from depression to the extent he
cannot work. The mild treatments he was prescribed also argue against a finding of
such severe depression.
B. Following Set Rules in the Evaluation of RSD
Combs argues Social Security Ruling (SSR) 03-2p requires ALJs to follow set
procedures in evaluating RSD claims. But he does not identify anything in particular
the ALJ did wrong under SSR 03-2p, other than proceed on the basis of a record he
claims was inadequate. His objections also seem to imply the ALJ either did not find
he suffered from RSD, or found his RSD was not severe. In fact, the ALJ did make
those findings; he just did not find the evidence in the record sufficient to deem him
unable to work. Once a diagnosis of RSD is found, the determination of whether
someone is disabled is made the same way it is for any other condition, and the ALJ
is fully authorized to make credibility determinations on the record before him.
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Factoring into the ALJ’s assessment of Combs’s credibility was a) he reported
no pain to a doctor in September 2000; b) he was not treated for the condition between
September 2000 and November 2003; c) he did not cooperate with, nor complete, a
functional capacity evaluation; and d) what he did complete of the functional capacity
evaluation led the physical therapist to conclude he was exaggerating his symptoms.
Combs testified he only took non-prescription pain medications for the majority
of the relevant period. The lack of strong prescription pain medication supports the
ALJ’s findings. Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999). Over-the-counter
medications are inconsistent with complaints of disabling pain. Loving v. Dep’t. of
Health & Human Serv., 16 F.3d 967, 971 (8th Cir. 1994). Moreover, when he did take
the medications, his doctor noted they resolved his complaints of pain. Patrick v.
Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (holding if an impairment can be
controlled by treatment or medication, it cannot be considered disabling).
C. The Posing of the Hypothetical
At the second hearing, the ALJ proposed a hypothetical to the vocational expert
(VE): “If I have a person who is basically limited to lifting 20 pounds occasionally,
10 pounds frequently, and can only occasionally balance, stoop, crouch, kneel, crawl,
or climb; simple, routine, repetitive work, no more than a regular pace, are there any
jobs he’d be capable of doing?” “Yes, there are, in my opinion,” the VE replied.
The VE testified Combs could perform almost all sedentary and light work.
The limitation on simple, routine work would limit the numbers of jobs available, but
a wide range of light and sedentary jobs would still be available.
The ALJ then asked a second hypothetical, adding that the person would require
two or more absences per month and when he is working, would require a slower pace
for a third of that day. The VE replied that in his opinion, that second person would
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not be competitively employable. Based on this – and after finding Combs not fully
credible as to the extent of his impairments – the ALJ found the first hypothetical best
described his residual functional capacity.
Combs argues the ALJ erred when he posed his first hypothetical question to
the VE, as it had no medical basis. This assertion is premised on the argument that the
record was undeveloped, and ignores that the ALJ found some of his reporting of
subjective symptoms to be not credible.
The Commissioner notes it is Combs’s – and not the Commissioner’s – burden
to prove his RFC at step four of the sequential evaluation, and it is the ALJ’s
responsibility to determine the RFC based on all relevant evidence, including medical
records, observations of treating physicians and others, and the claimant’s own
description of his limitations. Young, 221 F.3d at 1069 n.5.
Having determined Combs’s RFC, the ALJ found he did not have any past
relevant work to which he could return. Therefore, at step five of the sequential
evaluation process, the burden of production shifted to the Commissioner to
demonstrate there was other work found in significant numbers in the national
economy he could perform given his age, education, and residual functional capacity.
Id. See also 20 C.F.R. §§ 404.1520(f); 416.920(f) (2006). The VE indicated to the
ALJ that he could perform all but 10% of the sedentary jobs in the national economy,
and the ALJ accepted that analysis.
III
The district court correctly upheld the Commissioner’s decision in this matter.
The ALJ did not fail to fully develop the record, and Combs did fail to show how he
might have been prejudiced by any omission. The ALJ properly applied the rules in
the evaluation of RSD. The ALJ’s posing of a hypothetical to a vocational expert was
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proper. In the end, the ALJ’s decision was supported by substantial evidence on the
record as a whole, and its findings were within the “zone of reasonable choices”
within its discretion. We affirm.
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