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Little v. Colvin

United States District Court, D. Nebraska

May 14, 2015

GUSTAV A. LITTLE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


RICHARD G. KOPF, Senior District Judge.

Plaintiff brings this suit to challenge the Social Security Commissioner's final administrative decision denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.[1] For the reasons discussed below, the Commissioner's decision will be affirmed.


Plaintiff applied for SSI on January 24, 2011, when he was 55-years old, and claimed a disability onset date of September 17, 2008 (Transcript ("Tr.") 176-185).[2] Plaintiff complained of arthritis in his wrists, carpal tunnel syndrome, COPD, gout, back pain, macular degeneration, and depression (Tr. 180).

The application was denied initially on April 22, 2011 (Tr. 60-61, 64-67), and upon reconsideration on September 30, 2011 (Tr. 62-63, 71-74). Following these denials, Plaintiff requested an administrative hearing (Tr. 75).

Timothy Belford, an administrative law judge ("ALJ"), conducted a video hearing on February 22, 2013 (Tr. 32-59). Plaintiff was represented by counsel and testified at the hearing. Testimony was also provided by a vocational expert. The ALJ issued an unfavorable decision on April 26, 2013 (Tr. 12-26).

Using the 5-step sequential analysis prescribed by Social Security regulations, [3] the ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since January 24, 2011, the application date (20 CFR 416.971 et seq. ).
2. The claimant has the following severe impairments: arthritis of the wrists; carpal tunnel syndrome; degenerative disc disease; chronic constructive pulmonary disease (COPD); gout; diabetes mellitus type II; depression, and alcohol abuse in remission (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. The claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(b) with the following limitations: he could occasionally crawl; he could frequently handle and finger; he must avoid exposure to extreme temperature changes; he must avoid concentrated exposure to pulmonary irritants such fumes, odors, dust, gases, and poorly ventilated areas; work is limited to routine tasks with no detailed instructions; and he is limited to only occasional interaction with coworkers and the general public.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on May 9, 1955 and was 55 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed(20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since January 24, 2011, the date the application was filed (20 CFR 416.920(g)).

(Tr. 17-25).

On June 4, 2013, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Social Security Administration (Tr. 7-11). The request for review was denied on April 2, 2014 (Tr. 1-6). The ALJ's decision thereupon became the final decision of the Commissioner. See Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008). Plaintiff filed this action on May 2, 2014 (Filing No. 1).


Plaintiff argues the ALJ's decision should be reversed, and the case remanded, because (1) the ALJ did not order a consultative physical examination; (2) the ALJ's assessment of Plaintiff's residual functional capacity, which relied on the opinions of non-examining physicians, does not comply with Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000); and (3) the vocational expert's opinion does not support a finding that Plaintiff is not disabled. In response, the Commissioner argues that (1) the record contained sufficient evidence for the ALJ to determine Plaintiff's physical abilities without a consultative exam; (2) Nevland is inapposite; and (3) any errors in the vocational expert's testimony are harmless.


The medical evidence includes 705 pages of treatment records from the Veterans Administration Medical Center (VAMC) in Hot Springs, South Dakota, covering a period of 12½ years, from May 15, 2000, to December 13, 2012 (Tr. 259-964). The bulk of this evidence reports addiction treatment. In addition, the record contains reports of two consultative psychological examinations that were conducted at the request of the Commissioner on January 9, 2009, and March 31, 2011 (Tr. 209-14, 254-58).[4]

On January 9, 2009, Plaintiff underwent a consultative mental examination with Suzanne Halfen, Psy.D. (Tr. 209-14). Dr. Halfen found that Plaintiff was oriented and fully able to participate in the evaluation (Tr. 213). Plaintiff had congruent mood and effect with no indications of thought disorder (Tr. 213). She found that Plaintiff's mental processing was surprisingly fast, and that he had good immediate and longterm recall (Tr. 213). Plaintiff's weakest area was abstraction, but he had average insight and judgment and "quite good" arithmetic skills and fund of knowledge (Tr. 213). She observed that he had deficits of adaptive functioning, specifically occasional lack of energy and great difficulty with social functioning, but that he could sustain concentration and attention when not drinking and in the absence of conflict (Tr. 213). Plaintiff could remember short and simple instructions, but often needed a task demonstration (Tr. 213). Plaintiff could also appropriately relate to supervisors and coworkers (Tr. 213).

On July 29, 2009, Plaintiff had a mental status exam in connection with his readmission to a residential rehabilitation treatment program with the Department of Veterans Affairs (VA). Plaintiff was oriented, had fair judgment and insight, and was well groomed with good hygiene (Tr. 507). Plaintiff had a full range affect, logical and sequential thought process, and a cooperative attitude (Tr. 507). Psychologist Andrew Q. Tran, M.D., continued Plaintiff's medications and ordered a one-month follow up (Tr. 508). A nursing assessment the following day revealed that Plaintiff walked every day for exercise and was capable of walking on ramps and stairs (Tr. 505). Plaintiff also reported a desire to participate in incentive therapy and compensated work therapy (CWT) (Tr. 502).

During a family and social assessment on August 4, 2009, Plaintiff stated that he had been working for five years on a ranch (Tr. 498). Psychologist Daniel Trujillo assessed Plaintiff's strengths as some work history, and observed that Plaintiff remained physically active and could perform activities of daily living and "still work, enjoys arts, crafts and leather work" (Tr. 497). Another psychological assessment the same day showed that Plaintiff's serious anxiety was a direct result of drugs and alcohol use (Tr. 494). Except for a little difficulty with short-term memory in the past year, Plaintiff reported no trouble with understanding, concentration, or memory (Tr. 494). Plaintiff said that he only experienced loss of interest and pleasure in normal life during times of excessive daily use of cannabis and alcohol (Tr. 494). The mental status examination showed that Plaintiff was cooperative, with some short-term difficulty with forgetfulness, but concrete thought processes, normal mood, and fair judgment and insight (Tr. 495).

On August 12, 2009, Plaintiff reaffirmed his ability and interest to work and enter the CWT program (Tr. 482). On August 18, 2009, Plaintiff underwent a routine mental status examination and had logical, sequential, and goal-oriented thoughts (Tr. 477-78). His judgment and insight were fair, and he was fully oriented (Tr. 478). A routine treatment note from August 27, 2009, shows that Plaintiff was working on a truck and making ceramics in his spare time (Tr. 474).

On September 15, 2009, Plaintiff was approved for work with no restrictions (Tr. 464). A nurse practitioner at the VAMC determined that Plaintiff was capable of lifting 50 pounds, performing occupational bending, standing for two hours, working an eight-hour shift, operating hand tools or equipment, and negotiating stairs (Tr. 463). Plaintiff was found mentally and physically capable of operating woodshop power tools: table saw, jig saw, jointer, radial arm saw, router, drill press, disc and belt sanders, band saw, portable power tools, grinder, riding mower, push mower, weed eater, lawn sweeper, hand blower, Bobcat, snow blower" (Tr. 463).

On September 17, 2009, Plaintiff reported that "work is going well, " despite also reporting feelings of depression, hopelessness, and worthlessness (Tr. 461). On October 8, 2009, Plaintiff said that his employer was pleased with his work (Tr. 457). Plaintiff's follow up reports consistently showed largely normal mental status examination results and effective medications. For example, on December 2, 2009, Plaintiff reported that his sleep and mood were better since beginning Sertraline (Tr. 447), and that Trazodone helped his sleep with no side effects from either medication (Tr. 447).

On February 10, 2010, Plaintiff underwent an exercise stress test but stopped after 7 minutes because of dypsnea (shortness of breath) and leg fatigue (Tr. 307). The exam was negative, with no exercise induced ischemia or significant arrhytmias seen, but was limited by Plaintiff's decreased exercise tolerance (Tr. 307).

On March 2, 2010, Plaintiff had an audiology exam after reporting a ringing in his ears and difficulty hearing (Tr. 301-304). Hearing thresholds and tympanometry results were established within normal hearing limits, bilaterally, suggesting normal ...

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