Hicks v. Social Security Administration

Filing 14

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).

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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)

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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
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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
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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).

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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
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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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