Jessie Nash v. Commissioner, Social Security

United States Court of Appeals

For the Eighth Circuit

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No. 17-1726

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Jessie Mae Nash

lllllllllllllllllllllPlaintiff - Appellant

v.

Commissioner, Social Security Administration

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: September 27, 2018

Filed: November 2, 2018

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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

Jessie Mae Nash appeals the judgment of the district court upholding the

Commissioner of Social Security's denial of her application for disability insurance

benefits and supplemental security income. Having jurisdiction under 28 U.S.C.

§ 1291, this court affirms.

I.

Nash, now 68, has a sixth-grade education and a general equivalency diploma.

She worked as a telemarketer, recruiter, salesperson, medical assistant, and nursing-

home aide. She claims a disability onset date of January 31, 2012—the day she was

laid off as a recruiter. Though she sought work, she has not since engaged in

substantial gainful activity.

Seven months later, Nash protectively filed for disability benefits, alleging

problems with her back, right knee, and right thumb. Her medical history begins the

next month, when she visited Dr. Adam C. Dooley. He diagnosed her with

degenerative joint disease in her knee, mild arthritis in her thumb, morbid obesity,

and lower back pain. The first record of treatment is six months later, at the

emergency room after falling. She next visited a third doctor, Dr. William Joseph, for

a general medical evaluation. He noted elevated blood pressure, joint pain in her

knee, general abdominal pain, and urinary incontinence. He prescribed medications

for knee pain, back pain, and overactive bladder. Nash then amended her limitations

to include problems with her bladder and frequent urination.

At the hearing before the Administrative Law Judge (ALJ), Nash testified she

is unable to work because of trouble sitting. She said that sitting is painful, and that

she lies down and props up her feet to relieve the pain. She frequently uses the

restroom, “always going back and forth to the bathroom.”

The ALJ applied the five-step evaluation in the social security regulations. See

20 C.F.R. §§ 404.1520(a), 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987);

Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008). First, Nash had not engaged

in substantial gainful activity since the onset date. Second, she had three severe

medical impairments: degenerative joint disease of the right knee, right thumb

arthritis, and obesity. The ALJ found “no persuasive evidence of bladder problems,”

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adding “no medical sources have identified or documented disabling limitations.”

The ALJ found that Nash’s “statements concerning the intensity, persistence, and

limiting effects of [the alleged] symptoms are not entirely credible,” and that her

alleged impairments “do not individually or in combination cause more than minimal

limitation in her ability to perform basic work activities.” Third, the ALJ found her

impairment, or combination of impairments, did not meet any listed impairment.

Fourth, the ALJ determined that Nash has the residual functional capacity (RFC) to

perform her past work as a telemarketer.

The ALJ concluded that Nash was not disabled within the meaning of the

Social Security Act between January 31, 2012 and October 16, 2014. The district

court affirmed. Nash appeals.

II.

This court reviews de novo a decision affirming the denial of disability

benefits. See Byes v. Astrue, 687 F.3d 913, 915 (8th Cir. 2012). This court reverses

the findings of the Commissioner only if they are unsupported by substantial evidence

or result from an error of law. See 42 U.S.C. § 405(g); Chismarich v. Berryhill, 888

F.3d 978, 979 (8th Cir. 2018). “Substantial evidence is less than a preponderance, but

enough that a reasonable mind would find it adequate to support the Commissioner's

conclusions.” Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). “[T]his court

considers evidence that detracts from the Commissioner's decision as well as

evidence that supports it.” Id. “If substantial evidence supports the Commissioner's

conclusions, this court does not reverse even if it would reach a different conclusion,

or merely because substantial evidence also supports the contrary outcome.” Id.

Nash first argues that her RFC assessment is unsupported by substantial

evidence because “the ALJ did not go over hypotheticals with the vocational expert

that would address her having to lay down and prop up her feet or having to go to the

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bathroom frequently, during normal workday hours.” It is “the ALJ's responsibility

to determine [the claimant’s] RFC based on all the relevant evidence, including

medical records, observations of treating physicians and others, and [claimant’s] own

description of her limitations.” Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.

1995); 20 C.F.R. §§ 404.1545-46, 416.945-46. Her alleged limitations—needing to

lie down and prop up her feet and always going back and forth to the bathroom—are

supported only by her testimony. Subjective complaints may be discounted if the

claimant’s testimony is inconsistent with the evidence as a whole. Polaski v.

Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ found Nash’s alleged

limitations “not entirely credible” because they were inconsistent with other evidence

in the record.

While at least three doctors documented Nash’s back pain, her medical records

do not include any directions to lie down and prop up her feet. True, Dr. Dooley

recommended she avoid bending, squatting, or prolonged standing or walking, but

he also wrote she “should be able to sit, hold a conversation, respond appropriately

to questions, carry out and remember instructions.” Nash testified she performs

personal tasks, housework, and errands. She visits friends several times a week.

These “regular physical activities. . . undermine her assertion that she is unable to

perform even sedentary work.” Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015).

Nash explained she quit working on the onset date because her employer closed the

department where she worked, and she actively looked for work after the onset date.

See Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998) (determination that claimant

not disabled supported in part by facts that claimant (1) left job due to lay-off, not her

medical condition, and (2) continued to seek work after alleged onset date).

As for her bladder condition, no medical source identified it as a disabling

limitation. Dr. Joseph’s diagnoses do include urinary incontinence, and he prescribed

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medication for it.1 But, his notes identify neither a basis for the diagnosis nor any

accompanying limitations. Nash did testify that even with the medication, she

needed to use the bathroom frequently. But, she also testified that her last job made

allowances for her frequent breaks.

“Credibility determinations are the province of the ALJ.” Julin v. Colvin, 826

F.3d 1082, 1086 (8th Cir. 2016). This court defers to the ALJ’s determinations “as

long as good reasons and substantial evidence support the ALJ's evaluation of

credibility.” Id. Here, good reasons and substantial evidence support the ALJ’s

determination that her claimed limitations are “not entirely credible.” “This court will

not substitute its opinion for the ALJ's, who is in a better position to gauge credibility

and resolve conflicts in evidence.” Travis, 477 F.3d at 1040.

An ALJ must include “only those impairments and limitations he found to be

supported by the evidence as a whole in his hypothetical to the vocational expert.”

Perkins v. Astrue, 648 F.3d 892, 902 (8th Cir. 2011) (ALJ not required to adopt

claimant’s “unsupported subjective complaints and self-imposed limitations.”). The

ALJ was not required to ask the vocational expert hypotheticals addressing “her

having to lay down and prop up her feet or having to go to the bathroom frequently”

because the ALJ determined these limitations were not credible.

Nash next argues the ALJ did not comply with Social Security Ruling 96-8p,

which requires assessing Nash’s RFC on a “function-by-function” basis. Social

Security Ruling 96–8p, 1996 WL 374184, at *1. This court “review[s] the record

to ensure that an ALJ does not disregard evidence or ignore potential limitations, but

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The district court’s statement—“While Nash reported bladder problems, the

record is devoid of any diagnosis or treatment for such an issue”—is incorrect, but

does not affect this court’s de novo review. Nash v. Berryhill, No. 416-CV-00053,

2017 WL 928429, at *2 (E.D. Ark. Feb. 14, 2017), adopted, 2017 WL 933122 (E.D.

Ark. Mar. 8, 2017).

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[does] not require an ALJ to mechanically list and reject every possible limitation.”

McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Here, the ALJ considered

Nash’s alleged limitations, and substantial evidence supports the ALJ’s RFC

assessment.

Finally, Nash argues that the Magistrate Judge erred by denying her request for

another hearing. Nash is not entitled to another hearing. The district court does not

find additional facts, but determines whether the Commissioner’s decision is

supported by substantial evidence in the record. See 42 U.S.C.A. § 405(g); Vester v.

Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The district court properly denied the

request for another hearing.

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The judgment is affirmed.

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