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Render v. Colvin

United States District Court, D. Nebraska

January 22, 2014

DANIEL J. RENDER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


RICHARD G. KOPF, Senior District Judge.

Plaintiff, Daniel J. Render, brings this suit to challenge the Social Security Commissioner's final administrative decision denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. ยงยง 401-434.[1] For the reasons discussed below, the Commissioner's decision will be affirmed.


Plaintiff is a 56-year-old man who has a high school education and work experience in construction. He claims to have been disabled since July 10, 2009, due to multiple sclerosis.

Plaintiff's application for disability insurance benefits was denied initially on November 12, 2009 (Transcript ("Tr.") (CM/ECF filing 9) 90). The application was also denied on reconsideration, on May 25, 2010, with the Commissioner explaining that "while [Plaintiff] may not be able to engage in past work activities, the records indicate that [he is] capable of other types of work activities... that are light in nature" (Tr. 95).

Following these denials, Plaintiff filed a request for an administrative hearing (Tr. 99-100). Kathleen Muramoto, an administrative law judge ("ALJ"), conducted a hearing on March 16, 2011, in Omaha, Nebraska (Tr. 24-79). Plaintiff, who waived representation, testified at the hearing. A vocational expert also provided testimony.

The ALJ issued an unfavorable decision on April 6, 2011, concluding that although Plaintiff is unable to perform any past relevant work, he is not disabled. Using the 5-step sequential analysis prescribed by Social Security regulations, [2] the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since July 10, 2009, the alleged onset date (20 CFR 404.1571 et seq .).
The claimant worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity. (Exhibits 4D, 6D-10D, and 1E) Additionally, the claimant reported that he received short-term disability for approximately 6 months and unemployment for approximately 9 months. (Exhibit 11E/3)
3. The claimant has the following severe impairment: multiple sclerosis (20 CFR 404.1520(c)).
Additionally, there is evidence in record that the claimant has experienced some problems with his vision and also has hypertension. However, the claimant has not had any significant complaints or significant treatment for these conditions. (1F-5F, 8F, 18F, and 20F) Moreover, at the hearing, when given an opportunity to testify about the limiting effects that these conditions placed on him, the claimant did not do so. Furthermore, there was essentially no evidence in the record to suggest that these conditions would place limitations on the claimant's ability to perform basic-work related activities.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except as follows:
The claimant can occasionally climb and balance. He must avoid concentrated exposure to hazards such as machinery and heights.
At the hearing, the claimant testified that his multiple sclerosis prevents him from being able to work. He said that the last time he saw his neurologist at the University of Nebraska Medical Center for this condition was 2 to 3 months ago. According to the claimant, his neurologist wants to see him more frequently but he has not been able to do so because he does not have insurance.
The claimant stated that he takes Rebif injections every other day to treat his multiple sclerosis, high blood pressure medications, and over-the-counter pain medications (Excedrin and Bayer). Additionally, he indicated that he experiences side effects as a result of taking Rebif. Moreover, he said that approximately once a month his side effects are so severe that he is not able to leave his home for three days (though this was getting better). In addition, the claimant stated that since taking Rebif he has been able to walk and his bad symptoms have not returned. He did, however, report that at times his body still aches, he has trouble using parts of his body, and also has difficulty sleeping. He further indicated that his current neurologist has never outright said he could not work.
Functionally, the claimant said that he was only able to sit for 1 hour, and stand for 1 hour. Additionally, he said that if he walked 100 yards, it would take him 30 minutes to recover. He also indicated that if he works too hard or does too much he has trouble with his vision. According to the claimant, he could lift 100 pounds, but could not carry it. At times, he stated that he experiences difficulty using his hands.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairment could reasonably be expected to cause the alleged symptoms; however, 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.
The objective medical evidence in record shows the claimant's history and treatment for his severe impairment. (Exhibits 1F-4F, 9F, 11F, 15F, 17F, and 19F-20F) In July 2009, the claimant was hospitalized at Bergan Mercy Medical Center where it was reported that he had progressive weakness with demyelinating findings on an MRI of the brain (multiple sclerosis); hypertension; and a history of venous sinus thrombosis. (Exhibits 1F/25, and 1F/21 also see Exhibit 15F)
Following his hospitalization, the claimant received treatment for his physical impairment at Alegent Health Clinic. (Exhibit 2F) He later began receiving treatment from Dr. Edward Schima, a neurologist, who prescribed him Rebif to manage his multiple sclerosis. (Exhibits 3F-4F, and 19F)
The record is essentially void of any treatment the claimant received for his severe physical impairment from September 2009 until January 2010 when he began receiving treatment from Creighton University Medical Center Department of Neurology. (Exhibits 9F, 11F, and 17F)
Treatment notes from Creighton University Medical Center Department of Neurology from April 2010 indicate that the claimant had not experienced any relapses. (Exhibit 11F/6) Moreover, in September 2010, it was revealed that the claimant's motor strength was 5/5 in all proximal and distal muscle groups tested; and that his muscle tone and bulk were normal. (Exhibit 17F/6) At that time, it was also noted that the claimant had been doing "very well." (Exhibit 17F/5)
Following the claimant's office visit at Creighton University Medical Center Department of Neurology in September 2010, there was no indication in the record that the claimant has received any other follow-up care, or required any emergency room treatment, or hospitalizations for his multiple sclerosis.
As for the opinion evidence, in October 2009, Dr. Schima reported that the claimant had severe impairment of gait which would prevent him from engaging in any activity that involved walking, handling objects, working at heights, or lifting. He also opined that the claimant was not able to work. (Exhibit 4F/2) First, although Dr. Schima is an acceptable medical source and treating source, his opinions and reports are quite conclusory as he provided very little explanation regarding the information he relied on in forming his opinions. Moreover, his opinions and reports contrast sharply with other substantial evidence in record which renders them less persuasive. Lastly, even the claimant through his own self-reports has not described limitations with respect to his ability to walk, handle objects, work at heights, or lift that are as narrow as those described by Dr. Schima. For all of the foregoing reasons, the opinions and reports of Dr. Schima are not given great weight.
Pursuant to SSR 96-6p, the State agency medical consultants' physical assessments are afforded great weight because they are generally consistent with other substantial evidence in record. (Exhibits 6F, and 13F)
The claimant is not a fully credible witness. At the hearing, the claimant testified that he was not able to see his neurologist as frequently as she would like to see him because he does not have any insurance. However, the record (along with his testimony) indicates that he was able to support his tobacco use of approximately one-half a pack a day along with his alcohol use of a couple beers every three days. (Exhibit 17F/5) Additionally, there was no indication in the record that the claimant attempted to obtain a Medical Assistance card so that he could obtain such medical care. Moreover, the claimant testified that sometimes he experiences pain in his right leg for 2 weeks that make it difficult for him to walk, however, there is no indication in the record that he has ever sought treatment at a free clinic or emergency room when this has occurred. Furthermore, the claimant offered testimony indicating that when he takes medications such as over-the-counter Excedrin and Bayer it works to alleviate his pain.
In his statements of record submitted to the Social Security Administration (and in his testimony), the claimant reported various activities that he could engage in such as maintain his personal hygiene; go out to his shop to perform odd jobs; exercise; make his own meals; perform some house work; do some yard work; drive an automobile; go to the store or to visit friends a few times a week; visit with his girlfriend's mother; feed his dog; watch television; and play chess online. (Exhibit 5E) The activities that the claimant indicated that he could engage in are not limited to the extent one would expect from a disabled person. Additionally, the claimant testified that he went on vacation with his son in 2010. Although a vacation and a disability are not necessarily mutually exclusive, the claimant's decision to go on a vacation tends to suggest that the alleged symptoms and limitations may have been overstated. Moreover, when looking at the overall record, the severity of the claimant's symptoms are vastly inconsistent with the objective medical evidence. Furthermore, although the claimant reported that his medication (Rebif) caused him to experience significant side effects, the record is essentially void of any indication that ...

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