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)

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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 1 T h e parties have consented to the jurisdiction of the Magistrate Judge. (Docket #6) 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. 3 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 2 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 3 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). 6 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 7 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? 4 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 5 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., 10 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. 11 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 12

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