Hicks v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 8/17/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION D O N N A HICKS v. CASE NO. 2:08CV00075 BD DEFENDANT P L A IN T IF F
M IC H A E L J. ASTRUE, Commissioner, Social Security Administration M E M O R A N D U M OPINION AND ORDER
P la in tif f , Donna Hicks, has appealed the final decision of the Commissioner of the S o c ia l Security Administration to deny her claim for Disability Insurance benefits and S u p p le m e n ta l Security Income, based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision.1 T h e Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ); see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a re a s o n a b le mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 0 2 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it; the Court m a y not, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket entry #4)
"Disability" is the "inability to engage in any substantial gainful activity by reason of a n y medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less th a n 12 months." 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). A "physical or mental im p a irm e n t" 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 stic techniques." 42 U.S.C. §§ 423(d)(3); 1382c(a)(3)(D). P la in tif f alleged that she was limited in her ability to work by degenerative disk d is e a s e , heart problems, obesity and knee problems. (Tr. 49, 310) The Commissioner found th a t she was not disabled within the meaning of the Social Security Act. The only issue b e f o 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 f te r conducting an administrative hearing at which Plaintiff and a vocational expert te s tif ie d , the Administrative Law Judge ("ALJ") concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act at any time through January 5, 2 0 0 7 , the date of his decision. (Tr. 21-22) On April 21, 2008, the Appeals Council denied P la in tif f '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. 2-4) Plaintiff then filed her complaint initiating this a p p e a l. (Docket #2) A f te r consideration of the record as a whole, the Court finds that the decision of the C o m m is sio n e r is supported by substantial evidence. P la in tif f was 49 years old at the time of the hearing. (Tr. 316, 320) She is a high sc h o o l graduate with some college. (Tr. 145, 320, 323) She has past relevant work as a c o o k , waitress and cosmetologist. (Tr. 21, 136, 322, 324, 337)
The ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process: (1) whether the claimant was engaged in substantial gainful a c tiv ity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the im p a irm e n t (or combination of impairments) met or equaled an impairment listed in the L istin g of Impairments in Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) if not, whether the im p a irm e n t (or combination of impairments) prevented the claimant from doing past re le v a n t work. If the claimant has sufficient residual functional capacity to perform past re le v a n t work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )(4 )(iv ). If the claimant cannot perform past relevant work, the ALJ proceeds to S te p 5, which requires 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., § § 404.1520(a)(4)(v); 416.920(a)(4)(v) . If so, benefits are denied; if not, benefits are a w a rd e d . Id. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since her a lle g e d onset date.2 (Tr. 16) He found that Plaintiff had "severe" impairments: degenerative d is k disease and mild spondylosis of the lumbar spine, degenerative joint disease of both k n e e s , arthralgias, a granulomatous lung condition, and obesity. (Tr. 17) He found she did n o t have an impairment or combination of impairments that met or equaled a Listing. Id. He judged that Plaintiff's allegations regarding her limitations were not totally credible. (Tr. 17 -19 ) T h e ALJ found that Plaintiff retained the residual functional capacity for a narrowed ra n g e of light work. (Tr. 19) He determined she was unable to perform any of her past In an obvious conflict, the ALJ also noted, "She earned $4372 in 2004; $7943 in 2005; a n d $8241 in 2006. She was actually engaged in substantial gainful activity during the p e rtin e n t period at issue." His latter statement is in error. See h ttp ://w w w .s s a .g o v /O A C T /C O L A /s g a .h tm l. 3
relevant work. (Tr. 20) Based on the testimony of a vocational expert witness in response to a hypothetical question, the ALJ found that there were a significant number of jobs in the e c o n o m y which Plaintiff could perform, notwithstanding her limitations, for example, w e lc o m e hostess and information clerk. Id. Thus, the ALJ concluded that Plaintiff was not d is a b le d . (Tr. 21) P la in tif f contends the ALJ erred by rejecting the opinions of her treating physician a n d Disability Determination Services physicians that she was limited to sedentary work. (Br. 9-12) She points to a Medical Source Statement completed by Wilfred Onyia, M.D., A u g u s t 2, 2003. (Br. 11, Tr. 168-69) Dr. Onyia offered an opinion that Plaintiff was limited to occasionally lifting or carrying ten pounds, to standing or walking a total of three hours in a n eight-hour workday, one hour continuously, and to sitting a total of five hours in an eighth o u r workday, two hours continuously. (Tr. 168) The ALJ considered Dr. Onyia's opinion, b u t rejected it because it was not based on clinical and laboratory findings in the record. (Tr. 1 9 ) That is a recognized basis for discounting a doctor's opinion. See Krogmeier v. B a r n h a r t, 294 F.3d 1019, 1023 (8th Cir. 2002)(treating physician's opinion not entitled to su b sta n tia l weight unless well supported by medically acceptable clinical and laboratory d ia g n o stic techniques, and consistent with other substantial evidence). Supportability. The more a medical source presents relevant evidence to su p p o rt an opinion, particularly medical signs and laboratory findings, the m o re weight we will give that opinion. The better an explanation a source p ro v id e s for an opinion, the more weight we give that opinion. . . . 20 C.F.R. §§ 404.1527(d)(3); 416.927(d)(3) (2007). R e s id u a l functional capacity checklists, such as the one completed by Dr. Onyia, a lth o u g h admissible, are entitled to little weight in the evaluation of disability. E.g., Taylor v . Chater, 118 F.3d 1274, 1279 (8th Cir. 1997); O'Leary v. Schweiker, 710 F.2d 1334, 1341 (8 th Cir. 1983); see also Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000)(discounting 4
treating physician's two pages of checked boxes devoid of illuminating examples, d e sc rip tio n s or conclusions). F u rth e rm o re , the record does not support Plaintiff's contention that Dr. Onyia was a tre a tin g physician. It appears that Dr. Onyia saw Plaintiff for only a short period of time in 2 0 0 5 , when she treated her for congestion and body aches, and gave her a B-12 shot (Tr. 2 9 5 -9 83 ). See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (doctor had only m e t with patient on three occasions when she filled out checklist). "Generally, the longer a tre a tin g source has treated you and the more times you have been seen by a treating source, th e more weight we will give to the source's medical opinion." 20 C.F.R. § § 404.1527(d)(2)(i) and 416.927(d)(2)(i) (2007). Plaintiff routinely named James Franks, M .D ., as her treating physician. (Tr. 202, 227, 235, 243, 251, 262, 277) In September of 2 0 0 5 , Plaintiff did not mention Dr. Onyia among her doctors. (Tr. 86-88) Under the c irc u m s ta n c e s , the ALJ gave appropriate weight to Dr. Onyia's opinion. Furthermore, the A L J noted the opinions of Disability Determination Services physicians, but correctly stated th a t he was not bound by them. (Tr. 19) Next, Plaintiff argues that the ALJ erred by rejecting her testimony without citing re a s o n s supported by substantial evidence. (Br. 12-16) The ALJ considered Plaintiff's su b je c tiv e complaints in light of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).4 (Tr. 18) T h e absence of an objective medical basis which supports the degree of se v e rity of subjective complaints alleged is just one factor to be considered in e v a lu a tin g the credibility of the testimony and complaints. The adjudicator The Commissioner's usual practice is to provide a detailed List of Exhibits. In this c a se , however, the List of Exhibits lumps much evidence together, e.g., "Medical Evidence." (Tr. 1) The detailed List of Exhibits is much more useful to the Court and, no doubt, to the a tto rn e ys who prepare the briefs. The ALJ also cited Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529 and 4 1 6 .9 2 9 . (Tr. 18-19) That Ruling tracks Polaski and 20 C.F.R. §§ 404.1529(c)(3) and 4 1 6 .9 2 9 (c )(3 ), and elaborates on them. 5
must give full consideration to all of the evidence presented relating to su b je c tiv e complaints, including the claimant's prior work record, and o b s e rv a tio n s by third parties and treating and examining physicians relating to su 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 medication; 5 . functional restrictions. T h e adjudicator is not free to accept or reject the claimant's subjective c o m p la in ts solely on the basis of personal observations. Subjective complaints m a y be discounted if there are inconsistencies in the evidence as a whole. Polaski v. Heckler, 739 F.2d at 1322 (emphasis 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 showed medical conditions that were disabling. Furthermore, inconsistencies b e tw e e n the medical evidence and Plaintiff's subjective complaints gave reason to discount th o s e complaints. Richmond v. Shalala, 23 F.3d 1441, 1443 (8th Cir. 1994). Given the lack of medical evidence in support of Plaintiff's allegations, the lack of m o re treatment, Plaintiff's daily activities, her functional capabilities and the lack of re s tric tio n placed on Plaintiff by her physicians, the ALJ could rightly discount Plaintiff's su b je c tiv e complaints. See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (ALJ may discount subjective complaints if there are inconsistencies in the record as a w h o le ); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may discount c o m p la in ts inconsistent with the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8 th Cir. 1996) (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).
Plaintiff alleged an onset of disability January 1, 2004. (Tr. 49, 54, 310, 312, 320) She testified that she was working at the Blue Flame Café six hours a day, four days a week in 2004. (Tr. 321) In 2005, she worked "about" two hours a day for a total of one and oneh a lf days a week and "about the same" in 2006. Id. However, as the ALJ pointed out, her e a rn in g s record reflected she earned $4372 in 2004, $7943 in 2005, and $8241 in 2006. (Tr. 5 3 ) She made more money in 2006 than she had earned any other year of her life. Reports th a t she completed in November of 2004 indicated that she was working at that time. (Tr. 1 3 6 , 140) She was earning $5.25 an hour. Id. At that rate of pay, she would have had to h a v e worked 126 hours a month in 2005 and 131 hours a month in 2006. Medical records as la te of December of 2005 show Plaintiff's employed at the Blue Flame Grill. (Tr. 151, 162, 2 2 4 , 232, 248, 259, 267, 274) P la in tif f 's work activity during the period that she alleges disability supports the A L J's conclusion that she was not disabled. See Dunahoo v. Apfel, 241 F.3d at 1039 (s e e k in g work and working while applying for benefits inconsistent with complaints of d is a b lin g pain); Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996)(return to past work u n d e rc u ts complaints of inability to perform any work); Roe v. Chater, 92 F.3d 672, 677 (8th C ir. 1996)(actual activities, including work, incongruous with contention that cannot work); C o m s to c k v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996)(work activity belies claim of d is a b lin g pain); Cruze v. Chater, 85 F.3d 1320, 1324 (8th Cir. 1996)(active lifestyle and p e rf o rm a n c e of odd jobs tend to prove claimant can work); Piepgras v. Chater, 76 F.3d 233, 2 3 6 (8th Cir. 1996)(wide range of activities, including working two days a week, supports f in d in g of no disability); Bentley v. Chater, 52 F.3d 784, 786 (8th Cir. 1995)(seeking work in c o m p a tib le with disability); Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)(intention to work tends to prove ability to work); Starr v. Sullivan, 981 F.2d 1006, 1008 n.3 (8th Cir. 1 9 9 2 )(e v e n though not substantial gainful activity, work activity determinative of capacity 7
for work); Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1989)(any work during c la im e d disability may show capacity for substantial gainful activity). In addition to w o rk in g , Plaintiff returned to college in 2004-05. (Tr. 155, 323) T h e ALJ is not required to discuss each Polaski factor as long as the analytical f ra m e w o rk is recognized and considered. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2 0 0 6 ); Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004). Substantial evidence supports th e ALJ's credibility determination. T h ird , Plaintiff argues that the ALJ erred by finding that she retained the residual f u n c tio n a l capacity for light work with a sitting and standing option because there is no m e d ic a l evidence to support that finding. (Br. 16-19) In April, 2005, Plaintiff underwent a g e n e ra l physical examination. (Tr. 183-89) Plaintiff had a full range of motion in the spine a n d all extremities except for mild limitation of flexion of the lumbar spine. (Tr. 186) Muscle strength was 5/5.5 (Tr. 187) There was no evidence of muscle atrophy, and no se n so ry abnormalities were noted. Id. Coordination was normal; her gait was waddling. Id. She had ability to hold a pen and write, touch fingertips to palms, grip, oppose thumb to f in g e rs, pick up a coin and stand and walk without assistive device. Id. There was no e d e m a . (Tr. 188) There was no evidence of serious mood disorder or psychosis; she was o rie n te d to time, person and place. Id. The doctor indicated she was moderately limited in h e r ability to walk, stand, sit, lift, carry, handle objects and travel due to her morbid obesity. (Tr. 189) In 2003, Plaintiff weighed between 323 and 329˝ pounds. (Tr. 262, 286-89) At her h e a rin g , she testified that her weight remained fairly constant and estimated her weight at One useful scale for grading muscle strength assigns 0 to no visible muscle contraction, 1 to trace movement, 2 to limb movement when gravity is eliminated, 3 to movement against g ra v ity but not resistance, 4 to movement against resistance supplied by the examiner and 5 to normal strength. The Merck Manual 1751 (18th ed. 2006). 8
330 pounds. (Tr. 324) Plaintiff's obesity was a longstanding impairment, and she was c a p a b le of performing similar and greater exertional work despite her weight. See Box v. S h a la la , 52 F.3d 168, 171 (8th Cir. 1995)(claimant had 16 year work history despite weight). Substantial evidence supports the ALJ's residual functional capacity determination, as does so m e medical evidence. Plaintiff's argument seeks to place the burden of proof on the Commissioner. It is the c la im a n t's burden, and not the Social Security Commissioner's, to prove the claimant's re s id u a l functional capacity. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005); E ic h e lb e r g e r v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Masterson v. Barnhart, 363 F .3 d 731, 737 (8th Cir. 2004); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Young v. Apfel, 221 F.3d 1065, 1 0 6 9 n.5 (8th Cir. 2000); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). Finally, Plaintiff argues that the hypothetical question was insufficient because it in c o rp o ra te d a deficient residual functional capacity. (Br. 19-20) Since the Court has d e te rm in e d the residual functional capacity determination was not deficient, this argument a ls o fails. It is not the task of this Court to review the evidence and make an independent d e c is io n ; nor may it reverse the decision of the ALJ because there is evidence in the record w h ic h contradicts the findings. The test is whether there is substantial evidence on the re c o rd as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F.3d 2 5 9 , 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, the tra n s c rip t of the hearing and the medical and other evidence. There is ample evidence on the re c o rd as a whole that "a reasonable mind might accept as adequate to support [the] c o n c lu s io n " of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also 9
Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d e c is io n is not based on legal error. A c c o rd in g ly, the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED this 17th day of August, 2009.
UNITED STATES MAGISTRATE JUDGE
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