Harris v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING the decision to deny Ms. Harris's applications; judgment will be entered accordingly. Signed by Magistrate Judge Beth Deere on 10/17/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
TABITHA HARRIS

PLAINTIFF

v.

No. 2:11–CV–00194–BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Tabitha Harris sought judicial review of the denial of her applications for
disability insurance benefits (DIB) and supplemental security income (SSI).1 Ms. Harris
worked as a cafeteria manager for ten years, but the record does not explain why she
ceased working at that job. Ms. Harris based disability on her back, bipolar disorder,
and drug abuse.2 Ms. Harris testified that she had a herniated disc and a bulging disc at
the site of an earlier back surgery.3 An MRI of Ms. Harris’s spine, however, showed no
recurrent herniation and only a “slight” bulge at the site of the earlier surgery.4 The

1

See docket entry # 2 (complaint).

2

SSA record at p. 122.

3

Id. at p. 34.

4

Id. at p. 209.

bulge did not impinge on the nerve root so as to substantiate all of Ms. Harris’s
allegations.5
Medical records established diagnoses of bipolar disorder and polysubstance
abuse, and indicated treatment controlled those conditions.
After considering Ms. Harris’s applications, the ALJ found that although
Ms. Harris had severe impairments—degenerative disc disease, post back surgery at the
L4-5 discs, bipolar disorder, and polysubstance abuse disorder6—Ms. Harris had the
residual functional capacity (RFC) to do sedentary work with specified exertional and
non-exertional limitations.7 Because a vocational expert identified jobs a person with
Ms. Harris’s RFC could do, the ALJ concluded that Ms. Harris was not disabled under
the Social Security Act.8 Ms. Harris has raised four arguments to challenge that
conclusion.

5

Rebecca J. Frey, 4 The Gale Encyclopedia of Med. 2645 (4th ed.) (describing how
a herniated disc can pinch or irritate a spinal nerve and cause pain to radiate down the
leg, as well as causing numbness and weakness).
6

SSA record at p. 14.

7

Id. at p. 15. The limitations included the following: Ms. Harris could
occasionally bend, stoop, and crouch, and never squat, kneel, or crawl. She could
understand, carry out, and remember simple tasks; use judgment to make simple workrelated decisions; interact with co-workers on no more than an occasional basis; not
interact with the general public; and deal with changes in a non-varying work setting.
8

Id. at p. 21.
2

Ms. Harris’s RFC. Ms. Harris argues that the ALJ erred in determining her RFC
because she could not sit to do sedentary work9 and because the ALJ under-estimated
the effect of her bipolar disorder.10 “In determining the claimant’s [RFC], the ALJ has a
duty to establish, by competent medical evidence, the physical and mental activity that
the claimant can perform in a work setting, after giving appropriate consideration to all
of her impairments.”11
In this case, no competent medical evidence showed that Ms. Harris could not sit
to do sedentary work. Sedentary work ordinarily requires the ability to sit for “about 6
hours of an 8-hour workday.”12 Ms. Harris never complained to physicians about the
inability to sit. In contrast, Dr. Brian Hunter observed that Ms. Harris maintained a
seated position comfortably during his psychological examination.13 The MRI of
Ms. Harris’s back did not indicate Ms. Harris was unable to sit. And the MRI did not

9

Docket entry # 13, pp. 18-19.

10

Id. at p. 20.

11

Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996).

12

SSR 96-9p: Policy Interpretation Ruling Titles II & XVI: Determining Capacity
to Do Work: Implications of a Residual Functional Capacity for Less Than a Full Range
of Sedentary Work, effective date: 7/2/96.
13

SSA record at p. 311.
3

support the alleged degree of limitation. The treatment notes of attending physicians
often contradict Ms. Harris’s allegations of disabling back pain.14
Dr. Bill Payne reviewed Ms. Harris’s medical records and opined that she could
sit for about 6 hours in an 8-hour day.15 Dr. Payne also opined that Ms. Harris could
occasionally stoop and crouch.16 This ability is consistent with the requirements for
sedentary work. The medical evidence—the treatment notes and Dr. Payne’s
opinion—constitutes substantial evidence17 supporting the ALJ’s RFC determination
because a reasonable mind would accept it as adequate to support the determination
that Ms. Harris could sit for 6 hours in an 8-hour workday, and thus work at a
sedentary level.
Ms. Harris also contends that the ALJ under-estimated the effect of her bipolar
disorder, but the ALJ likely over-estimated the effect of Ms. Harris’s bipolar disorder.
“Bipolar disorder is characterized by alternating manic episodes, in which the

14

See id. at pp. 278 (no back tenderness on May 7, 2009); p. 263 (no back
tenderness on April 15, 2010); p. 252 (no back tenderness on May 28, 2010. But see id. at
p. 349 (tenderness to lumbar spine on April 5, 2011).
15

Id. at 300.

16

Id. at p. 301.

17

See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990) (“Substantial evidence
‘means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”) (internal citation omitted) .
4

individual feels abnormally euphoric, optimistic, and energetic, and depressive periods,
in which the individual feels sad, hopeless, guilty, and sometimes suicidal.”18 Such
symptoms can impair a person’s ability to do basic work activities,19 but no evidence
showed that Ms. Harris’s symptoms affected her work.
Although Ms. Harris was diagnosed with bipolar disorder at age 25,20 she later
worked as a cafeteria manager for ten years.21 No evidence indicates that bipolar
disorder interfered with her ability to perform that work. Ms. Harris reported to the
psychological examiner that she could no longer perform a later job as a waitress
because of depression and mania, but she also reported getting divorced, learning her
son was HIV positive, using methamphetamine, and serving probation for a drivingunder-the-influence conviction22—all during the same time period. These events
indicate that more than depression and mania contributed to Ms. Harris’s difficulties
with employment.
18

Maria Basile & Laura Jean Cataldo, 1 The Gale Encyclopedia of Mental Health
211 (3d ed.).
19

Id. at p. 213 (“Signs of bipolar disorder may also be demonstrated outside of
mental illness symptoms in behaviors such as alcohol or drug abuse, poor work
performance, strained interpersonal relationships, or excessive promiscuity.”) (emphasis
added).
20

SSA record at p. 309.

21

Id. at p. 134.

22

Id. at p. 310.
5

Significantly, treatment records showed Ms. Harris’s symptoms were controlled
when she took prescribed medications and abstained from using methamphetamine.
For example, when Ms. Harris presented to the emergency room and reported an
overdose on methamphetamine,23 she stated that she had not been taking her
psychotropic medications.24 When Ms. Harris applied for disability benefits, she
reported few problems with the mental abilities needed to do basic work activities.25
For example, Ms. Harris reported getting along with family, friends neighbors or others;
finishing what she started; following instructions; and getting along with authority
figures.26 She also stated that she had not been fired for not getting along with others.
During her psychological exam, Ms. Harris reported getting along well with
others; loving her work as a cafeteria manager; responding satisfactorily to supervision,
coworkers and work pressure; and being able to understand, carry out, and remember
instructions.27 The examining psychologist reported that Ms. Harris responded

23

Id. at p. 239.

24

Id. at p. 230.

25

Examples include: “[1] Understanding, carrying out, and remembering simple
instructions; [2] Use of judgment; [3] Responding appropriately to supervision,
co-workers and usual work situations; and [4] Dealing with changes in a routine work
setting.” 20 C.F.R. § 404.1521(b) (DIB) & § 416.921(b) (SSI).
26

SSA record at pp. 161-62.

27

Id. at p. 310.
6

appropriately to an assessment of attention and concentration capacity and that
Ms. Harris was able to perform tasks in an acceptable time frame.28
To the extent bipolar disorder impaired Ms. Harris’s ability to work, the ALJ
limited the types of work Ms. Harris could do. The ALJ determined that Ms. Harris
could understand, carry out, and remember simple tasks; use judgment to make simple
work-related decisions; interact with co-workers on an occasional basis; not interact
with the general public; and deal with changes in a non-varying work setting. These
limitations are consistent with the consulting psychologist’s opinion that Ms. Harris
could perform at least unskilled, simple, repetitive work with incidental interpersonal
contact and direct, concrete supervision.29 The restrictions sufficiently incorporated
limitations flowing from Ms. Harris’s bipolar disorder. The ALJ did not err in
determining Ms. Harris’s RFC.
Credibility. Because medical evidence did not substantiate Ms. Harris’s
allegations, the success of her applications depended on her credibility. The ALJ found
Ms. Harris less than fully credible. Ms. Harris argues, however, that substantial
evidence does not support the ALJ’s credibility assessment.30

28

Id. at p. 312.

29

Id. at pp. 329-31 (mental RFC assessment).

30

Docket entry # 13, p. 19.
7

An ALJ has a statutory duty “to assess the credibility of the claimant and other
witnesses.”31 To assess Ms. Harris’s credibility, the ALJ followed the required two-step
process32 and considered the required factors.33 Thus, the question before the court is
whether substantial evidence supports the ALJ’s credibility assessment.
Substantial evidence supports the ALJ’s assessment. The focus of Ms. Harris’s
challenge is her ability to sit. As indicated above, there was no medical evidence in the
record to indicate that Ms. Harris was unable to sit so as to perform sedentary work.
Notably, after Ms. Harris alleged she was unable to work, she sought work and did
work. At the time of her hearing, Ms. Harris worked part-time—18-25 hours per
week—at a deli. That work did not constitute substantial gainful activity, but the effort
nevertheless weighs against the credibility of Ms. Harris’s allegation that she could do
no work.

31

Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).

32

See Policy Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements, SSR 96-7p (July 2,
1996).
33

In considering the credibility a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant’s prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant’s daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
aggravating factors; (d) dosage, effectiveness and side effects of medication; and (e)
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
8

A reviewing court “will defer to an ALJ’s credibility finding as long as the ALJ
explicitly discredits a claimant’s testimony and gives a good reason for doing so.”34
Here, the ALJ provided good reasons for discounting Ms. Harris’s credibility:
(1) Ms. Harris’s description of her daily activities was inconsistent with disabling
limitations, (2) an agency interviewer observed no limitations, (3) Ms. Harris’s treatment
was routine and/or conservative in nature, (4) Ms. Harris took minimal pain-relieving
medications, and (5) Ms. Harris demonstrated no debilitating symptoms at her
hearing.35 While each factor standing alone may be challengeable, together they
constitute good reason for discounting Ms. Harris’s credibility.
The ALJ, however, did not find Ms. Harris incredible; instead, the ALJ found Ms.
Harris partially credible and accordingly adjusted her RFC. For example, the medical
consultant opined that Ms. Harris could do medium work, but the ALJ considered Ms.
Harris’s complaints and reduced her RFC to sedentary. The RFC determination
reflected a reduced ability to work, but not an inability to work. The ALJ did not err in
assessing Ms. Harris’s credibility.

34

Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (citation omitted).

35

SSA record at p. 19.
9

Vocational expert testimony. Ms. Harris’s final argument challenges the
vocational expert’s testimony. Ms. Harris maintains that the testimony fell outside the
boundaries of the ALJ’s hypothetical question.36
Ms. Harris is correct about her first complaint—that the job of election clerk fell
outside the parameters of the question—because that job requires contact with the
general public as compared to the hypothetical question which asked about work with
no contact with the public. But that complaint does not require reversal because the
vocational expert identified two other jobs—weight tester and film touch-up inspector.
Ms. Harris contends that the jobs of weight tester and touch-up film inspector
exceed the reasoning level required by the question. Relying on the Dictionary of
Occupational Titles (DOT), Ms. Harris argues that the question called for jobs involving
the ability to understand, carry out, and remember simple instructions, and to make
simple, work-related decisions, but the jobs of touch-up film inspector and weight tester
require more reasoning ability—respectively, Level 237 and Level 3.38

36

Docket entry # 13, p. 21.

37

See Dictionary of Occupational Titles, code 726.684-050 (requiring reasoning
Level 2).
38

See Dictionary of Occupational Titles, code 539.485-010 (requiring reasoning
Level 3).
10

Level 2 reasoning requires the ability to “[a]pply commonsense understanding to
carry out detailed but uninvolved written or oral instructions.” Level 3 reasoning
requires the ability to “[a]pply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form” and “[d]eal with problems involving
several concrete variables in or from standardized situations.” Under Ms. Harris’s
argument, the ability to understand, carry out, and remember simple tasks, and to use
judgment to make simple work-related decisions, rules out the ability to do jobs
requiring Level 2 or Level 3 reasoning.
The claimant-appellant in Meissl v. Barnhart made a similar argument. In
rejecting the argument, the district court reasoned as follows:
The Social Security regulations separate a claimant’s ability to understand
and remember things and to concentrate into just two categories: “short
and simple instructions” and “detailed” or “complex” instructions. The
DOT, on the other hand, employs a much more graduated, measured and
finely tuned scale starting from the most mundane (“simple one- or
two-step instructions” at level one), moving up to the most complex
(“applying principles of logical or scientific thinking…apprehend the most
abstruse classes of concepts” at level six). To equate the Social Security
regulations use of the term “simple” with its use in the DOT would
necessarily mean that all jobs with a reasoning level of two or higher are
encapsulated within the regulations’ use of the word “detail.” Such a
“blunderbuss” approach is not in keeping with the finely calibrated nature
in which the DOT measures a job’s simplicity.39
As one goes up the numerical reasoning development scale used by the
DOT, the level of detail involved in performing the job increases while the
39

Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005).
11

job task becomes less routine. For example, a job with a reasoning level of
one only requires that the worker be able to “[a]pply commonsense
understanding to carry out simple one-or two-step instructions” in
“standardized situations with occasional or no variables.” In contrast, a
job with a reasoning level of three would require that the worker “[a]pply
commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form” and deal “with problems involving
several concrete variables….”40
As in Meissl, the “middle ground between these two points is…where the vocational
expert identifies a job with the lowest reasoning development score that [the claimant
can] perform;”41 here, weight tester and touch-up film inspector.
At most, Ms. Harris complains about an implied or indirect conflict between the
testimony and the DOT. The conflict is direct only if the court assumes a person limited
to understanding, carrying out, and remembering simple tasks, and using judgment to
make simple work-related decisions, cannot apply commonsense understanding to
carry-out detailed but uninvolved written or oral instructions (Level 2), or apply
commonsense understanding to carry out instructions furnished in written, oral, or
diagrammatic form and deal with problems involving several concrete variables in or
from standardized situations (Level 3). The ALJ did not ask the vocational expert about
work requiring less than Level 2 or Level 3 reasoning.

40

Meissl, 403 F. Supp. 2d at p. 983.

41

Id.
12

“[A] claimant’s reliance on the DOT as a definitive authority on job
requirements is misplaced because DOT definitions are simply generic job
descriptions that offer the approximate maximum requirements for each
position, rather than their range.” “The DOT itself cautions that its
descriptions may not coincide in every respect with the content of jobs as
performed in particular establishments or at certain localities.” “In other
words, not all of the jobs in every category have requirements identical to
or as rigorous as those listed in the DOT.” There is nothing in the record to
suggest that the vocational expert ignored the reasoning limitations in the
hypothetical in determining that the listed occupations encompassed
suitable jobs.42
Here, the record reflects an adequate basis for relying on the vocational expert’s
testimony. Ms. Harris reported having the ability to understand, carry out, and
remember instructions.43 She denied learning disabilities or educational problems.44
She completed one year of college courses. Despite her bipolar disorder, she reported
long-term occupational success45 in a job requiring reasoning Level 4.46

42

Moore v. Astrue, 623 F.3d 599, 604-05 (8th Cir. 2010) (internal citations omitted).

43

SSA record at pp. 161-62 & 310.

44

Id.

45

SSA record at p. 310 (reporting occupational success in job as cafeteria manager
and stating she got along well with others and loved working around kids).
46

See Dictionary of Occupational Titles, code: 319.137-018 (manager, industrial
cafeteria) (required reasoning level: Level 4).
13

The ALJ’s hypothetical question captured the concrete consequences of
Ms. Harris’s impairments, and thus, was properly phrased.47 The vocational expert
identified two responsive jobs. The ALJ properly relied on the vocational expert’s
response in concluding that Ms. Harris was not disabled. Because a vocational expert’s
testimony answering a properly phrased hypothetical question constitutes substantial
evidence, the ALJ’s conclusion is supported by substantial evidence.48
Conclusion. Substantial evidence supports the ALJ’s decision denying
Ms. Harris’s applications. The ALJ made no legal error. For these reasons, the court
DENIES Ms. Harris’s request for relief (docket entry # 2) and AFFIRMS the decision
denying the application.
It is so ordered this 17th day of October, 2012.

____________________________________
UNITED STATES MAGISTRATE JUDGE

47

Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010) (requiring a hypothetical
question to capture the concrete consequences of the claimant’s impairments).
48

Accord Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
14