Price v. Social Security Administration

Filing 18

MEMORANDUM AND ORDER affirming the final determination of the Commissioner, and dismissing Plaintiff's complaint, with prejudice. Signed by Magistrate Judge Beth Deere on 8/13/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS N O R T H E R N DIVISION D A V I D PRICE v. M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration, 1 :0 8 C V 0 0 0 1 9 BD P L A IN T IF F

DEFENDANT

M E M O R A N D U M AND ORDER P la in tiff, David Price, has appealed the final decision of the Commissioner of the S o c ia l Security Administration to deny his claim for Supplemental Security Income (SSI), b a s e d on disability. Both parties have submitted appeal briefs and the case is ready for d e c is io n .1 T h e Court's function on review is to determine whether the Commissioner's d e c is io n is supported by substantial evidence on the record as a whole and free of legal e rro r. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 1 8 7 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant e v id e n c e as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8 th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence

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T h e parties have consented to the jurisdiction of the Magistrate Judge. (Docket

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that detracts from the Commissioner's decision as well as evidence that supports it; the C o u rt may not, however, reverse the Commissioner's decision merely because substantial e v id e n c e would have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 8 6 3 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). " D is a b ility " is the "inability to engage in any substantial gainful activity by reason o f any medically determinable physical or mental impairment which can be expected to re s u lt in death or which has lasted or can be expected to last for a continuous period of n o t less than 12 months." 42 U.S.C. § 1382(a)(3)(A). A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory d ia g n o s tic techniques." 42 U.S.C. § 1382(a)(C)(I). Plaintiff alleged that he was limited in his ability to work by his back and knees, h e a d a c h e s , bipolar disorder, and by his feet. (Tr. 69) The Commissioner found that P la in tiff was not disabled within the meaning of the Social Security Act. The only issue b e fo re this Court is whether the Commissioner's decision that Plaintiff was not disabled w ith in the meaning of the Act is supported by substantial record evidence. A fte r conducting an administrative hearing at which Plaintiff, his wife and a v o c a tio n a l expert testified, the Administrative Law Judge ("ALJ") concluded that P la in tiff had not been under a disability within the meaning of the Social Security Act at a n y time through October 20, 2006, the date of his decision. (Tr. 24-25) On March 21, 2 0 0 8 , the Appeals Council received and considered additional evidence, but denied 2

Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the final d e c is io n of the Commissioner. (Tr. 5-8) Plaintiff subsequently filed a complaint in itia tin g this appeal. (Docket #2) After considering the record as a whole, the Court fin d s that the decision of the Commissioner is supported by substantial evidence. P la in tiff was 46 years old at the time of the hearing. (Tr. 424, 451) He had c o m p le te d the eleventh grade (Tr. 208, 424, 451) and had past relevant work as a machine fe e d e r. (Tr. 23, 437-38, 452) T h e ALJ considered Plaintiff's impairments by way of the required five-step s e q u e n tia l evaluation process. The first step involves a determination of whether the c la im a n t is involved in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i) (2006). If the claimant is, benefits are denied, regardless of medical condition, age, education or w o rk experience. Id. at § 416.920(b). S te p 2 involves a determination of whether the claimant has an impairment or c o m b in a tio n of impairments which is "severe" and meets the duration requirement. Id. at § 416.920(a)(4)(ii). If not, benefits are denied. Id. A "severe" impairment significantly lim its a claimant's ability to perform basic work activities. Id. at § 416.920(c). S te p 3 involves a determination of whether the severe impairments meet or equal a lis te d impairment. Id., § 416.920(a)(4)(iii). If so, and the duration requirement is met, b e n e fits are awarded. Id.

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If the claimant does not meet or equal a Listing, then a residual functional capacity a s s e s sm e n t is made. Id., § 416.920(a)(4). This residual functional capacity assessment is u s e d at Steps 4 and 5. Id. S te p 4 involves a determination of whether the claimant has sufficient residual fu n c tio n a l capacity to perform past relevant work. Id., § 416.920(a)(4)(iv). If so, benefits a re denied. Id. S te p 5 involves a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given claimant's age, education and work experience. Id., § 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are awarded. Id. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since J a n u a ry of 2002, the last date he reported working.2 (Tr. 20) He found Plaintiff had " s e v e re " impairments, including back pain, hypertension, visual impairment, asthma, d y s th y m ia , adjustment disorder, mood disorder and coronary artery disease. Id. He fo u n d Plaintiff did not have an impairment or combination of impairments that met or e q u a le d a Listing. Id. He judged that Plaintiff's subjective allegations were not entirely c re d ib le . (Tr. 23) T h e ALJ found that Plaintiff retained the residual functional capacity for less than a full range of light work. (Tr. 21) He determined that Plaintiff was unable to perform h is past relevant work. (Tr. 23) Based on the testimony of a vocational expert witness in

T h e ALJ made an inconsistent statement later in his opinion, finding that Plaintiff h a d engaged in substantial gainful activity since his alleged onset date. (Tr. 23) 4

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response to a hypothetical question, the ALJ found that there were a significant number of jo b s in the economy that Plaintiff could perform, notwithstanding his limitations, for e x a m p le , bottle packer and building cleaner. (Tr. 24) Thus, the ALJ concluded that P la in tiff was not disabled. Id. P la in tiff argues that the ALJ's credibility analysis was flawed and, therefore, the re s u ltin g hypothetical question to the vocational expert was as well. (Br. 15-22) The ALJ c o n s id e re d Plaintiff's subjective complaints in light of Polaski v. Heckler, 739 F.2d 1320 (8 th Cir. 1984).3 (Tr. 22-23) T h e absence of an objective medical basis supporting the severity of subjective c o m p la in ts alleged is just one factor to be considered in evaluating the credibility of the te s tim o n y and complaints. The adjudicator must give full consideration to all of the e v id e n c e presented relating to subjective complaints, including the claimant's prior work re c o rd , and observations by third parties and treating and examining physicians relating to s u c h matters as: 1 . the claimant's daily activities; 2 . the duration, frequency and intensity of the pain; 3 . precipitating and aggravating factors; 4 . dosage, effectiveness and side effects of 5 . functional restrictions. medication;

T h e ALJ also cited Social Security Ruling 96-7p. (Tr. 22) That Ruling tracks P o la s k i and 20 C.F.R. § 416.929(c)(3), and elaborates on them. 5

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The adjudicator is not free to accept or reject the claimant's subjective complaints s o le ly on the basis of personal observations. Subjective complaints may be discounted if th e re are inconsistencies in the evidence as a whole. Polaski v. Heckler, 739 F.2d at 1322 (e m p h a s is in original). T h e re is little objective support in the record for Plaintiff's claim of disability. No e v a lu a tio n s before the ALJ showed medical conditions that were disabling. Furthermore, in c o n s is te n c ie s between the medical evidence and Plaintiff's subjective complaints gave re a s o n to discount those complaints. Richmond v. Shalala, 23 F.3d 1141, 1443 (8th Cir. 1 9 9 4 ). Given the inconsistencies in Plaintiff's statements, the lack of medical evidence in s u p p o rt of Plaintiff's allegations during the relevant period, the lack of medical treatment fo r significant periods of time, Plaintiff's daily activities, his poor work record, his fu n c tio n a l capabilities and the lack of restriction placed on Plaintiff by any physician, the A L J could rightly discount Plaintiff's subjective complaints. See, e.g., Guilliams v. B a rn h a r t, 393 F.3d 798, 801 (8th Cir. 2005) (holding that ALJ may discount subjective c o m p la in ts if there are inconsistencies in the record as a whole); Dunahoo v. Apfel, 241 F .3 d 1033, 1038 (8th Cir. 2001) (holding that ALJ may discount complaints inconsistent w ith the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1996) (h o ld in g that after full consideration of all evidence relating to subjective complaints, A L J may discount complaints if there are inconsistencies in evidence as a whole).

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Charles M. Spellman, Ph.D., evaluated Plaintiff in August, 2004. (Tr. 208-10) Dr. S p e llm a n wrote: H e showed me a print[]out of his work history, which was well organized a n d documented. He has always worked since he was 13 when he washed dishes a t the country club. He has always kept his jobs until they played out or he found a better one and he said his work history has been good up until a couple of years a g o when he lost his factory job. (T r. 209) He concluded, "Psychological problems are not the cause of this man's d iffic u ltie s ." (Tr. 210) H o w e v e r, Plaintiff testified: A . . . . I just blow off the handle. I just can't ­ and it's been that way for years. Q For years? A For years. Q Has that affected your work history? Have you lost several jobs ­ A Yes, sir. Q ­ because of that? A Yes, sir. I'm not stable. No one knows when I'm going to blow up. (T r. 440) A p p a re n tly , Plaintiff did not have enough quarters of coverage to qualify for D is a b ility Insurance benefits, because he applied only for SSI. A fully insured worker w h o has at least 20 quarters of coverage during the 40 quarter period ending in the quarter

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in which he becomes disabled meets the disability insured status requirement. 42 U.S.C. § 423(c)(1)(B)(i). Both Plaintiff and his wife testified that he had used cocaine, but only once. Plaintiff was questioned by his attorney: Q : Okay. There's some notations here. Let me ask you about this: When was the last time you used coke? A : Just about a little over ­ I'd say a little over ­ just about a ­ over ­ a little over a year.[4 ] And it wasn't that, that, that often. That's why I wasn't ­ I was at that party, and like I explained ­ had explained to them. And D r. McKee explained to me that, that that's a killer, but that was just that o n e instance. Q : Do you think you'd have been disabled during any of this time even if y o u hadn't been using cocaine? A : Yes, sir. I mean, I had no problem with drugs, period. (T r. 440-41) T h e attorney then questioned Plaintiff's wife: Q : Okay. David talked about using cocaine a little over a year ago at this p a rty that he went to. A : Uh-huh. Q : Do you know of any other times that he has used any kind of illegal d rugs -- A : No. Q : ­ since you've been with him?

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T h e hearing was August 7, 2006. (Tr. 421) 8

A: No. Q : Was this an oddity then, that he did this at the party? A : Yes. (T r. 444) R E E X A M IN A T IO N OF CLAIMANT BY ATTORNEY: Q : David, first of all, and I want you to be honest about it, have you ever ta k e n illegal drugs other than that one time -- A : No. Q : ­ when you had? A : No, sir. No, sir. Q : What about marijuana? A : Well, I mean, when I was in the military, I mean, yeah, we smoked a little pot in the military, but I'm not a big fan of any drug now, because th a t's been so long ago, and I have so many problems. . . . . (T r. 445) A Newport Hospital & Clinic summary from April 18-19, 2003,5 noted, "He has in th e past been known to use street drugs." (Tr. 127) A Harris Hospital consultation report d a te d October 24, 2003, indicated Plaintiff drank alcohol occasionally, and his drug s c re e n was positive for cocaine. (Tr. 147) Physical examination revealed extremities w ith o u t weakness; Plaintiff had been in a fight with three or four men. Id. A Harris

P la in tiff alleged an onset date of July 1, 2002. (Tr. 66) This hospital record in d ic a te d that he was working for Delta Construction in Jonesboro. (Tr. 127) 9

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Hospital emergency room note from June 9, 2004, read, "Patient drinks alcohol on a daily b a s is and occasional cocaine usage." (Tr. 176)(Abbreviations spelled out) An August 6, 2 0 0 4 record from Baptist Health Medical Center indicated a positive toxicological screen fo r cocaine, but Plaintiff denied illicit drugs use. (Tr. 197) Contemporary records in d ic a te d urine drug screen positive for cocaine and benzodiazepams. (Tr. 200) Musculoskeletal was "normal." Id. "The patient uses cocaine on a fairly regular basis." (Tr. 199) He reports having done marijuana very frequently, up until June of this y e a r. He also reports having smoked crack cocaine in the past. He states that he w a s at a party last night where people were smoking crack cocaine to myself, h o w e v e r he told Dr. De.Bruyn that one of his brothers was smoking crack cocaine w h e n he drove him down here to Little Rock, Arkansas today, so if he has any c ra c k cocaine in his system it was due to "passive exposure." (T r. 194) Plaintiff was also inconsistent in his reports of smoking. He reported smoking one p a c k per day in November, 2002. (Tr. 277) In April of 2003, he claimed he did not s m o k e . (Tr. 127) By October, 2003, he was smoking one-half pack per day. (Tr. 147) He claimed that he quit smoking in January, 2004. (Tr. 79) In August, 2004, he indicated th a t he had smoked three packs per day until June, 2004, but was then smoking one-half p a c k per day. (Tr. 194) In June, 2006, he indicated that he smoked one pack per day. (Tr. 326) The ALJ's credibility analysis was proper. He made express credibility findings a n d gave multiple valid reasons for discrediting Plaintiff's subjective complaints. E.g.,

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Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996); Reynolds v. Chater, 82 F.3d at 258; Hall v. Chater, 62 F.3d 220, 224 (8th Cir. 1995). The ALJ's credibility findings are e n title d to deference as long as they are supported by good reasons and substantial e v id e n c e . Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). Plaintiff also contends that the Appeals Council failed to consider the additional e v id e n c e submitted to them. (Br. 22) That point is not well taken. In the Notice of A p p e a ls Council Action, it states, "In looking at your case, we considered the reasons you d is a g re e with the decision and the additional evidence listed on the enclosed Order of A p p e a ls Council." (Tr. 5) It is not the task of this Court to review the evidence and make an independent d e c is io n . Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on th e record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F .3 d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, th e transcript of the hearing and the medical and other evidence. There is ample evidence o n the record as a whole that "a reasonable mind might accept as adequate to support [th e ] conclusion" of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see a ls o Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The C o m m is s io n e r" s decision is not based on legal error.

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Accordingly, the final determination of the Commissioner is affirmed, and P la in tiff's complaint is hereby DISMISSED, with prejudice, this 13th day of August, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

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