Frazier v. Social Security Administration

Filing 15

MEMORANDUM AND ORDER affirming the final decision of the Commissioner. Signed by Magistrate Judge Jerome T. Kearney on 04/30/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
LATHA FRAZIER
V.

PLAINTIFF
CASE NO. 2:14-cv-00051-JTK

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM AND ORDER
Plaintiff Latha Frazier brings this action for review of a final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her claim for
disability insurance benefits (“DIB”). After reviewing the administrative record and the
arguments of the parties, the Court finds that substantial evidence supports the Commissioner’s
decision.
I.

PROCEDURAL HISTORY
Ms. Frazier protectively filed her application for supplemental security income on

October 20, 2006, alleging a disability onset date of July 17, 2006.1 (R. at 38.) She alleged
complications from a liver disease, vocal cord impairment, depression, anxiety, thyroid and
cervical cancer, and short-term memory loss. (R. at 176.) The Social Security Administration
denied Ms. Frazier’s claim at the initial and reconsideration levels. (R. at 38.) On September
28, 2009, an Administrative Law Judge (“ALJ”) held a hearing on this matter. (R. at 38.) On

1

“Disability” is the “inability to engage in any substantial gainful activity by reason of any 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 than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3).

November 19, 2009, the ALJ issued an unfavorable decision, denying Ms. Frazier’s claim. (R.
at 47.) The Appeals Council subsequently denied her request for review. (R. at 22.)
On April 15, 2014, after the Appeals Council apparently did not serve Ms. Frazier
properly with the notice of its decision for three years, she filed a timely complaint against the
Commissioner, appealing the ALJ’s denial of DIB. (Pl.’s Compl. 1, ECF No. 2.) On April 30,
2014, the parties consented to a Magistrate Judge having jurisdiction to issue a final judgment
in this case. (Consent 1, ECF No. 4.) Both parties have submitted appeals briefs for the Court
to consider. (Pl.’s Br., ECF No. 13; Def.’s Br., ECF No. 14.)
II.

ADMINISTRATIVE PROCEEDINGS
Ms. Frazier was forty-one years old at the time of the administrative hearing and had

completed high school. (R. at 75-76.) The ALJ applied the five-step sequential evaluation
process to Ms. Frazier’s claim.2 (R. at 39.) The ALJ found that Ms. Frazier satisfied the first
step because she had not engaged in substantial gainful activity. (R. at 40.) At step two, the
ALJ found that Ms. Frazier suffered from the severe medical impairments of chronic
obstructive pulmonary disease (“COPD”), vocal cord paralysis, status post thyroidectomy due
to multinodular goiter, headaches, a major depressive disorder, borderline personality disorder,
and polysubstance abuse in partial remission. (R. at 40.) At step three, the ALJ found that Ms.

2

The five part test asks whether the claimant: (1) is currently employed; (2) severely impaired; (3) has an
impairment or combination of impairments that meet or approximate a listed impairment; (4) can perform past
relevant work; and if not, (5) can perform any other kind of work. Through step four of this analysis, the claimant
has the burden of showing that he is disabled. Only after the analysis reaches step five does the burden shift to the
Commissioner to show that there are other jobs in the economy that the claimant can perform. Steed v. Astrue, 524
F.3d 872, 875 n. 3 (8th Cir. 2008).

2

Frazier did not have an impairment or combination of impairments that met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, Appx. 1. (R. at 42.) Before
proceeding to step four, the ALJ found that Ms. Frazier had a residual functional capacity
(“RFC”) to perform medium work with certain non-exertional limitations. (R. at 42.) She
found that Ms. Frazier should “avoid concentrated exposure [to] extreme cold, extreme heat,
fumes, odors, dust, gases and poor ventilation.” (R. at 42.) The ALJ also restricted Ms. Frazier
to simple, repetitive work. (R. at 42.) The ALJ determined that Ms. Frazier’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not credible
because they were not consistent with the record as a whole. (R. at 43.) The ALJ found at step
four that Ms. Frazier was capable of performing her past relevant work as a certified nurse’s
aid. (R. at 45.) Alternatively, the ALJ determined at step five that the there were jobs that
existed in significant numbers in the national economy that Ms. Frazier could perform, such
as a companion, hostess, sales attendant, assembler, and receptionist. (R. at 46.)
III.

STANDARD OF REVIEW
The Court’s limited 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.
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also 42 U.S.C. § 405(g). Substantial
evidence is “less than a preponderance, but enough that a reasonable mind might accept it as
adequate to support a decision.” Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (citing
Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)). The Commissioner’s decision cannot
be reversed merely because substantial evidence would have supported an opposite decision.

3

Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004). However, “[t]he substantial evidence
test employed in reviewing administrative findings is more than a mere search of the record
for evidence supporting the [Commissioner’s] findings.” Gavin v. Heckler, 811 F.2d 1195,
1199 (8th Cir. 1987). “‘Substantial evidence on the record as a whole’ . . . requires a more
scrutinizing analysis.” Id. (quoting Smith v. Heckler, 735 F.2d 312, 315 (8th Cir. 1984)). “In
reviewing the administrative decision, ‘[t]he substantiality of evidence must take into account
whatever in the record fairly detracts from its weight.’” Coleman v. Astrue, 498 F.3d 767, 770
(8th Cir. 2007) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
IV.

DISCUSSION
Ms. Frazier argues that the ALJ’s decision to deny her DIB is not supported by

substantial evidence. (Pl.’s Compl. 20, ECF No. 13.) Specifically, Ms. Frazier argues that
substantial evidence does not support the ALJ’s determination at step three that Ms. Frazier
did not meet listing 3.02(A). (Id.). Ms. Frazier also argues that substantial evidence does
not support the ALJ’s RFC assessment that Ms. Frazier could perform medium work. (Id.
at 25.) As such, Ms. Frazier argues that substantial evidence does not support the ALJ’s
determination at step four that Ms. Frazier could return to her past relevant work. (Id.). Ms.
Frazier argues at step five that substantial evidence does not support the ALJ’s alternative
finding because the ALJ asked the wrong hypothetical questions to the vocational expert
(“VE”). (Id. at 28.)
A.

STEP THREE

Ms. Frazier argues that substantial evidence does not support the ALJ’s decision at

4

step three that Ms. Frazier did not meet listing 3.02(A). (Pl.’s Br. 22, ECF No. 13.) She
argues that the results from her medical examination on February 20, 2007, prove that she
met this listing. (Id. at 24.) The Commissioner argues that substantial evidence supports the
ALJ’s decision to rely on the results from her March 15, 2007, examination proving that
Ms. Frazier did not meet listing 3.02(A). (Def.’s Br. 5, ECF No. 14.)
To meet listing 3.02(A), a claimant must have an FEV1 value “equal to or less than
the values specified in table I corresponding to the person’s height without shoes.” 20
C.F.R. Pt. 404, Subpt. P, Appx. 1, § 3.02(A) (“Listing 3.02(A)”). The FEV1 value “should
represent the largest of three satisfactory forced expiratory maneuvers.” Id. at § 3.00(E).
Two of the satisfactory spirograms “should be reproducible for both pre-bronchodilator
tests and, if indicated, post-bronchodilator tests.” Id. A value is reproducible “if it does not
differ from the largest value by more than 5 percent or 0.1L, whichever is greater.” Id.
During Ms. Frazier’s February 20, 2007, examination, the technician measured Ms.
Frazier’s height at sixty-six inches. (R. at 485.) Therefore, she would need an FEV1 value
equal to or less than 1.35L. Listing 3.02(A). Her greatest pre-bronchodilator FEV1 value
was 1.28L. (R. at 488.) Therefore, based on this examination, Ms. Frazier would meet the
listing because her FEV1 value is equal to or less than the value specified in table I.
However, her results were not reproducible. Her next-highest pre-bronchodilator FEV1
value was 0.91L. (R. at 488.) Since that differs from the largest value by more than 5
percent and 0.1L, two of the spirgrams were not reproducible for the pre-bronchodilator
tests. Therefore, this examination cannot be a basis for Ms. Frazier to prove that she met

5

listing 3.02(A). Since Ms. Frazier does not allege any other examination proves that she
met a listing, there is substantial evidence supporting the ALJ’s decision the Ms. Frazier
did not meet a listing under step three.
B.

MS. FRAZIER’S RFC

Ms. Frazier argues that she did not have the RFC to perform medium work. (Pl.’s
Br. 25, ECF No. 13.) The Commissioner argues that substantial evidence supports the
ALJ’s RFC assessment in determining that Ms. Frazier could perform medium work.
(Def.’s Br. 6, ECF No. 14.)
It is the claimant’s burden to prove her RFC. See Harris v. Barnhart, 356 F.3d 926,
930 (8th Cir. 2004). An individual’s RFC is her ability to do physical and mental work
activities on a sustained basis despite limitations from her impairments. See Social Security
Ruling 96-8p. “Because a claimant’s RFC is a medical question, an ALJ’s assessment of it
must be supported by some medical evidence of claimant’s ability to function in the
workplace.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (internal citations omitted).
Although an RFC is a medical determination, in making this determination the ALJ should
rely not only on medical evidence, but on all relevant, credible evidence. McKinney v.
Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
Ms. Frazier relies on the assessments performed by Shashikumar Gowda, M.D., in
challenging the ALJ’s RFC assessment. On April 25, 2007, Dr. Gowda wrote a letter
stating that he has been treating Ms. Frazier since December 2006 for severe COPD and
vocal cord paralysis. (R. at 525.) He indicated that Ms. Frazier has been “unable to do

6

activities of daily living without much discomfort,” and due to her “decreased activities of
daily living, she is unable to engage in gainful employment.” (R. at 525.) Dr. Gowda also
stated that Ms. Frazier’s condition has not improved since he started treating her. (R. at
525.)
Ms. Frazier argues that the ALJ improperly discounted Dr. Gowda’s assessment
from May 6, 2009, that Ms. Frazier “can only occasionally lift up to twenty pounds and
only carry up to ten pounds due to severe COPD and respiratory impairment, and she can
only stand a total of two hours and walk a total of one hour in an eight-hour day due to her
shortness of breath with activity and severe lung disease.” (Id. at 26.) Ms. Frazier also
argues that the ALJ improperly discounted Dr. Gowda’s assessment that Ms. Frazier “can
never climb, balance, stoop, crouch, kneel, or crawl due to shortness of breath, and she only
frequently can reach, handle, feel, and speak, and only occasionally push or pull. (Id.).
A treating physician’s opinion “is due ‘controlling weight’ if it is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the record.’” Hogan v. Apfel, 239 F.3d 958, 961 (8th
Cir. 2001) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)). Treating
physicians’ opinions “are given less weight if they are inconsistent with the record as a
whole or if the conclusions consist of vague, conclusory statements unsupported by
medically acceptable data.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (citing
Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)).
The ALJ found that Dr. Gowda’s opinions were conclusory, “without reference to

7

objective medical findings.” (R. at 45.) Ms. Frazier argues that Dr. Gowda’s assessment did
refer to objective medical findings, such as Ms. Frazier’s severe COPD and respiratory
impairment. (Pl.’s Br. 27, ECF No. 13.) Because Dr. Gowda’s assessment was based on
medically acceptable data, substantial evidence does not support the ALJ’s finding that Dr.
Gowda’s opinions were conclusory.
Substantial evidence supports the ALJ’s determination that Dr. Gowda’s opinions
were inconsistent with the record as a whole. Dr. Gowda based his opinions on Ms.
Frazier’s severe COPD, respiratory impairment, shortness of breath with activity, and
severe lung disease. (R. at 633-636.) In September 2007, Ms. Frazier reported to Brian
Black, D.O., that she was doing “fairly well,” and had not used albuterol for a long period
of time. (R. at 44.) In January 2008, the spirometry test showed that Ms. Frazier had
moderately severe COPD, but she was not taking medication for it. (R. at 44.) In April
2008, she “did not have any wheezes, rhonchi, or rales.” (R. at 44.) The ALJ may discount
a claimant’s subjective complaints of pain if a claimant does not utilize prescribed
medication. Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007).
Ms. Frazier continues to smoke even though she has been told multiple times that
she needs to quit smoking. (R. at 44.) Her failure to take medical advice mitigates her
allegations that her shortness of breath and severe lung disease have a disabling effect on
her. See Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008) (holding that smoking likely
caused the claimant’s COPD, and claimant’s continued smoking amounts to a “failure to
follow a prescribed course of remedial treatment.”)

8

Ms. Frazier’s statements during medical examinations are also inconsistent with
someone who cannot work. In November 2006, Isaiah Pittman, M.D., reported that she had
lots of energy. (R. at 527.) In April 2008, Ms. Frazier told Dr. Black that she had no
shortness of breath, and her laboratory test results were normal. (R. at 44, 537.) In August
2008, Ms. Frazier told Dr. Black that her breathing was largely controlled by her
medication. (R. at 44.) Substantial evidence supports the ALJ’s determination to discredit
Ms. Frazier based on her inconsistent statements in the record. Partee v. Astrue, 638 F.3d
860, 865 (8th Cir. 2011).
Since substantial evidence supports a finding that Dr. Gowda’s opinions were
inconsistent with the record as a whole, the ALJ properly gave them little weight. (R. at
45.) The ALJ instead relied on the assessment by Joseph Gaddy, M.D., and Joelle Larson,
Ph.D., both who reviewed the entire record at the time in giving their opinions about Ms.
Frazier’s RFC. (R. at 42-43.) After a review of the record as a whole, substantial evidence
supports the ALJ’s finding that Ms. Frazier can do medium work with certain nonexertional limitations.
Since Ms. Frazier did not challenge the hypothetical question to the VE at step four,
based on the VE’s testimony, substantial evidence supports the ALJ’s decision that Ms.
Frazier can return to her past relevant work. Therefore, the ALJ’s determination that Ms.
Frazier is not disabled is affirmed.
C.

STEP FIVE

Ms. Frazier argues that the ALJ’s alternative finding at step five that there are

9

significant numbers of jobs in the national economy that Ms. Frazier can perform is not
supported by substantial evidence because the ALJ asked the VE the incorrect hypothetical
questions. (Pl.’s Br. 29, ECF No. 13.) Although Ms. Frazier is not disabled pursuant to the
ALJ’s finding at step four, the ALJ’s alternative finding at step five is also supported by
substantial evidence.
“To decide whether work exists in significant numbers, this Court has adopted the
standards set forth in Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988).” Johnson v.
Chater, 108 F.3d 178, 180 (8th Cir. 1997). “After discussing certain factors that a judge
might consider in making this determination, such as the reliability of the claimant’s and
the vocational expert’s testimony, the Hall court stated that ‘[t]he decision should
ultimately be left to the trial judge’s common sense in weighing the statutory language as
applied to a particular claimant’s factual situation.’” Id. (citing Jenkins v. Bowen, 861 F.2d
1083, 1087 (8th Cir. 1988).
Here, substantial evidence supports the hypothetical questions proffered to the VE.
Ms. Frazier argues that “nothing was mentioned to the VE about the hypothetical person
avoiding concentrated exposure [to] extreme cold, extreme heat, fumes, odors, dust, gases,
and poor ventilation, and being restricted to simple, repetitive work.” (Pl.’s Br. 29, ECF
No. 13.) The ALJ did restrict the hypothetical person as Ms. Frazier describes in his
original hypothetical question. (R. at 86.) When adding additional limitations to his
subsequent hypothetical questions, he stated that he was “keeping all of the other
limitations that I just gave you, . . . .” (R. at 86.) Therefore, the ALJ asked the VE

10

hypothetical questions that properly reflected his RFC assessment. As a result, substantial
evidence supports the ALJ’s alternative finding at step five that significant jobs exist in the
national economy that Ms. Frazier can perform.
V.

CONCLUSION
It is not the task of this Court to review the evidence and make an independent

decision. Neither is it to reverse the decision of the ALJ because there is evidence in the
record that contradicts his findings. The test is whether there is substantial evidence on the
record as a whole which supports the decision of the ALJ. Pratt v. Sullivan, 956 F.2d 830,
833 (8th Cir. 1992).

The Court has reviewed the entire record and concludes there is ample evidence on
the record as a whole that “a reasonable mind might accept as adequate to support [the]
conclusion” of the ALJ in this case. Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The
Commissioner’s decision is not based on legal error. Therefore, the final decision of the
Commissioner is affirmed.
SO ORDERED this 30th day of April, 2015.

__________________________________
UNITED STATES MAGISTRATE JUDGE

11