Easter v. Social Security Administration

Filing 17

ORDER affirming the final decision of the Commissioner and dismissing pltf's complaint with prejudice. Signed by Magistrate Judge H. David Young on 7/17/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

KIMBERLY L. EASTER

VS.

PLAINTIFF

CASE NO. 1:11CV00094 HDY

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

ORDER
Plaintiff has appealed the final decision of the Commissioner of the Social Security
Administration to deny her claim for supplemental security income (SSI). In this judicial review,
the Court must determine whether there is substantial evidence in the administrative record to
support the Commissioner’s decision. 42 U.S.C. § 405(g).
This Court’s review function is limited to determining whether the Commissioner's findings
are supported by substantial evidence on the record as a whole. See Prosch v. Apfel, 201 F.3d 1010,
1012 (8th Cir. 2000). "Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's conclusions.” Id. The Court
may not reverse merely because evidence would have supported a contrary outcome. See id.
The only disputed issue in this case is whether plaintiff is disabled within the meaning of the
Social Security Act. Plaintiff bears the burden of establishing a physical or mental impairment that
will result in death, or that has lasted twelve months or more and has prevented her from engaging
in any substantial gainful activity. 42 U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 1382c(3)(A) and (B).

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Plaintiff filed for SSI on September 28, 2009, alleging she had been disabled since January
1, 1994. Her application was denied initially and upon reconsideration, and she requested a hearing
before an administrative law judge (ALJ).
Plaintiff was 43 years old at the time of the hearing, which was conducted on January 26,
2011. (Tr. 50-71). The plaintiff, a high school graduate, testified at the hearing. A vocational
expert witness also testified. The plaintiff testified that she had been incarcerated from August of
2008 through September of 2009. She stated that she lives with her husband “off and on.” (Tr. 55).
The plaintiff indicated that she last drank alcohol more than two months before the hearing, and last
used marijuana four to five months prior to the hearing. According to the plaintiff, she was
diagnosed with Hepatitis C “a long long time ago.” (Tr. 56). She stated that she was supposed to
have taken medication for Hepatitis C while in prison, and she also noted that she did not take any
antidepressants or other mental health medications while incarcerated. The plaintiff conceded that
she smoked marijuana that contained crack cocaine in the year prior to the hearing. She stated that
she hurt her left shoulder about four years prior to the hearing. She flatly stated that she did not
currently drink or use drugs. She testified that she is sick often with her Hepatitis C, and her daily
activities include cleaning the house and eating. On questioning from her attorney, the plaintiff
stated that she uses part of her utility check from HUD to pay for her medications, which cause some
drowsiness. She stated that she takes her medicine as prescribed. The plaintiff indicated she could
sit, stand, and walk, but sometimes had blurred vision due to high blood pressure. She stated that
she could not run or jump, or lift and carry, and that pushing and pulling caused pain. (Tr. 62).
Mentally, the plaintiff stated she was doing better with her medication, but that she has memory
problems. She stated she was not emotionally stable. She testified to receiving treatment many

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times for mental health. She stated that she takes Depakote. Describing her daily activities, the
plaintiff mentioned watching television, cleaning her house, eating, and reading her Bible. She
stated that she rises early but goes to bed “usually at dark.” (Tr. 65). After noting that the plaintiff
has no past relevant work history, the ALJ posed a hypothetical question to a vocational expert,
assuming an individual who could perform medium unskilled work where interpersonal contact was
only incidental to the work performed, where complex tasks would need to be learned and performed
by rote, and where the work would contain few variables and require little judgment, with simple,
direct, concrete supervision. (Tr. 68). The vocational expert opined that such an individual could
perform the jobs of cleaner I and cashier II. A second hypothetical question was posed to the
vocational expert. This question contained the same assumptions as the first, with the exception of
a light exertional level rather than medium. The vocational expert stated that such an individual
could perform cleaner, cashier, and laundry jobs.
On March 18, 2011, the ALJ found the plaintiff was not disabled as defined in the Social
Security Act. (Tr. 27-43). The ALJ specifically found the medical evidence established the plaintiff
has the following severe impairments: bursitis in the left shoulder with radiculopathy on the left;
hepatitis C; and mood disorder and anxiety related disorder. The ALJ found the plaintiff does not
have an impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found the plaintiff has the
residual functional capacity to perform light, unskilled work. In reaching this conclusion, the ALJ
analyzed and discounted the subjective allegations of the plaintiff. The ALJ determined the plaintiff
had no past relevant work. The ALJ, noting the nonexertional impairments of the plaintiff and
relying upon the testimony of the vocational expert, found the plaintiff could perform work that

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exists in significant numbers in the national economy. For example, the jobs of cleaner and cashier
were cited. Thus, the ALJ found the plaintiff was not disabled. The Appeals Council, on October
18, 2011, denied plaintiff’s request for review (Tr. 17-19), and plaintiff subsequently filed suit with
this Court.
The ALJ considered her impairments by way of the familiar five-step sequential evaluation
process.
The first step involves a determination of whether the claimant is involved in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If the claimant is, benefits are denied; if not, the
evaluation goes to the next step.
Step two involves a determination, based solely on the medical evidence, of whether the
claimant has a severe impairment or combination of impairments. Id., § 404.1520©); see 20 C.F.R.
§ 404.1526. If not, benefits are denied; if so, the evaluation proceeds to the next step.
Step three involves a determination, again based solely on the medical evidence, of whether
the severe impairment(s) meets or equals a listed impairment which is presumed to be disabling.
Id., § 404.1520(d). If so, benefits are awarded; if not, the evaluation continues.
Step four involves a determination of whether the claimant has sufficient residual functional
capacity, despite the impairment(s), to perform past work. Id., § 404.1520(e). If so, benefits are
denied; if not, the evaluation continues.
Step five involves a determination of whether the claimant is able to perform other
substantial and gainful work within the economy, given claimant's age, education and work
experience. Id., § 404.1520(f). If so, benefits are denied; if not, benefits are awarded.
In support of her request for reversal, plaintiff asserts that the ALJ erred by: (1) failing to

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properly consider her mental impairments in assessing her residual functional capacity (RFC); (2)
failing to consider her carpal tunnel syndrome and its effect on her RFC; (3) failing to give the
proper weight to her subjective allegations; (4) giving too much weight to the non-examining
sources and a one-time consultative examiner; and (5) posing a flawed hypothetical question to the
vocational expert at step five of the sequential analysis. Plaintiff’s brief at 12-25.
The plaintiff first urges that the ALJ failed to properly consider her mental impairments in
assessing her residual functional capacity (RFC). We find no merit in this argument. A review of
the ALJ’s opinion shows that he addressed the mental impairments alleged by the plaintiff1. He
found the plaintiff had no more than moderate limitations in her activities of daily living, no more
than moderate limitations in social functioning, moderate limitations in her ability to maintain
concentration, persistence or pace, and the ALJ found no episodes of decompensation. Based upon
these findings, the ALJ concluded the plaintiff did not meet a listing, and that the plaintiff’s mental
impairments have more than a minimal effect on her ability to do basic work-related activities. This
effect was taken into consideration when the ALJ questioned the vocational expert.

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hypothetical questions posed to the witness included limitations, such as limited interpersonal
contact and direct supervision, which corresponded to the plaintiff’s impairments. We find no error
in the ALJ’s conclusions concerning the plaintiff’s mental impairments, or in the manner in which
the ALJ integrated his findings into the questions posed to the vocational expert.

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The plaintiff cites the reports of Dr. Hester and Dr. Adams as supporting her mental impairment
claims. The ALJ discussed Dr. Hester’s findings. However, Dr. Adams’ report was not available
to the ALJ at the time of his ruling. The report was submitted to the Appeals Council. Dr. Adams’
findings are quite consistent with those of Dr. Hester, emphasizing the plaintiff’s need for simple
directions and low levels of interpersonal contact. These concerns were addressed by the ALJ and
included in his questions posed to the vocational expert.
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The second claim of the plaintiff is the ALJ failed to consider her carpal tunnel syndrome
and its effect on her RFC. After the administrative hearing and the ALJ’s decision, the plaintiff was
diagnosed with moderately severe carpal tunnel syndrome of the left upper extremity. She argues
that this new evidence requires reversal or remand of the case. The defendant correctly notes that
the plaintiff did not allege a disabling hand impairment in her application materials, in her testimony
at the administrative hearing, or in her brief to the Appeals Council. Typically, the failure to allege
a disabling impairment is a sufficient basis for upholding the decision of the Commissioner. Sullins
v. Shalala, 25 F.3d 601 (8th Cir. 1994). Here, we note that the plaintiff’s brief to the Appeals
Council, while not mentioning carpal tunnel syndrome, does argue that she could not do light work
due to joint and shoulder pain. The Appeals Council was provided the Neurodiagnostics Report
which showed “moderately severe carpal tunnel syndrome of the left upper extremity.” (Tr. 862).
The report provides little other data, except to note the plaintiff’s ulnar and radial nerve studies are
otherwise normal. Given the sparse information to support the claim the plaintiff now makes with
regard to carpal tunnel syndrome, we find substantial evidence supports the Commissioner’s
decision. There is no merit to the second claim of the plaintiff.
Plaintiff next contends the ALJ failed to give the proper weight to her subjective allegations.
The ALJ utilized the familiar framework from Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984) in
considering the plaintiff’s credibility. The ALJ noted that the subjective complaints of pain were
not matched by objective medical evidence, that no medical source had opined that the plaintiff was
disabled, that plaintiff had a weak work history, that plaintiff was frequently noncompliant with
medical directives, that she had sought medical care on an infrequent basis, and that her daily
activities were inconsistent with her subjective complaints. Our review of the thorough analysis of

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the ALJ’s credibility assessment shows his conclusion is supported by substantial evidence.
The fourth claim of the plaintiff is that the ALJ gave too much weight to the non-examining
sources and a one-time consultative examiner. The plaintiff specifically argues that the state agency
medical consultants did not personally examine the plaintiff, and that consulting physician Dr.
Sudesh Banaji examined her only once. As a result, the plaintiff contends the ALJ should not have
assigned as much weight to these opinions. We find no error in this regard. The findings of the state
agency consultants and of Dr. Banaji were cited by the ALJ. The ALJ noted he “was not bound by
the findings of these medical consultants.” (Tr. 41). The opinions were cited simply because they
were consistent with the ALJ’s conclusions. We note that the opinions of the non-examining
sources and of Dr. Banaji were not opposed by any medical care provider, as no physician opined
that the plaintiff was disabled. There is no merit in the fourth claim of the plaintiff.
The final assertion of the plaintiff is that the ALJ posed a flawed hypothetical question to the
vocational expert at step five of the sequential analysis. This argument is intertwined with claim
three, where the plaintiff alleges error in assessing her subjective allegations. The allegedly flawed
hypothetical questions were premised upon the credibility findings of the ALJ. We have previously
found no error in the credibility evaluation. It follows that the hypothetical questions based upon
the credibility findings are supported by substantial evidence.
In summary, for the reasons cited herein, we find no merit in the arguments advanced by the
plaintiff.
IT IS THEREFORE ORDERED that the final decision of the Commissioner is affirmed and
plaintiff’s complaint is dismissed with prejudice.

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IT IS SO ORDERED this 17

day of July, 2012.

UNITED STATES MAGISTRATE JUDGE

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