Henard v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner; and dismissing 2 Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 1/7/2015. (srw)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
MEMORANDUM OPINION AND ORDER
Plaintiff, Tabitha Henard, appeals the final decision of the Commissioner of the Social
Security Administration finding that she was no longer disabled, and, therefore, no longer eligible
for supplemental security income benefits under Title XVI of the Act. For reasons set out below,
the decision of the Commissioner is AFFIRMED.
On October 26, 2004, Ms. Henard was found disabled as of May 19, 2003. However, on
February 5, 2010, it was determined that, as of February 1, 2010, she was no longer disabled. Ms.
Henard’s claims were denied upon reconsideration. At Ms. Henard’s request, an Administrative Law
Judge (“ALJ”) held a hearing on November 16, 2012, where Ms. Henard appeared with her lawyer.
At the hearing, the ALJ heard testimony from Ms. Henard and a vocational expert (“VE”). (Tr. 942972)
The ALJ issued a decision on April 25, 2013, finding that as of February 1, 2010, Ms. Henard
was no longer disabled under the Act. (Tr. 11-19) On May 29, 2014, the Appeals Council denied
Ms. Henard’s request for review, making the ALJ’s decision the Commissioner’s final decision. (Tr.
Ms. Henard, who was twenty-eight years old at the time of the hearing, has an ninth grade
education and has never had a job. (Tr. 950, 952)
DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ noted that the most recent favorable medical decision finding Ms. Henard disabled,
also known as a “comparison point decision” (“CPD”), was dated October 26, 2004. When the CPD
was issued, Ms. Henard had the following impairments: schizophrenia with depressive features and
borderline intellectual functioning. (Tr. 21) However, the ALJ found that as of February 1, 2010,
Ms. Henard no longer had an impairment or combination of impairments meeting or equaling an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Tr. 22)
According to the ALJ, Ms. Henard has the residual functional capacity (“RFC”) to do a full
range of work at all exertional levels. However, she can only understand, remember, and carry out
simple tasks; cannot work in coordination or cooperation with coworkers to complete tasks; requires
simple, direct, and concrete supervision; and her interaction with coworkers and the general public
must be incidental to completion of work tasks. (Tr. 24) The VE testified that the jobs available
with these limitations were housekeeper and laundry worker. (Tr. 969)
After considering the VE’s testimony, the ALJ determined that Ms. Henard could perform
a significant number of other jobs existing in the national economy, and found that Ms. Henard was
The ALJ followed the required sequential analysis to determine: (1) whether the claimant
had a severe impairment; (2) whether there has been medical improvement; (3) if so, is the
improvement related to the ability to work; (4) if no medical improvement, whether any exceptions
apply; (5) whether the current impairments (or combination of impairments) are severe; (6) whether
the current impairments (or combination of impairments) prevented the claimant from performing
past relevant work; and (7) if so, whether the impairment (or combination of impairments) prevented
the claimant from performing any other jobs available in significant numbers in the national
economy. 20 C.F.R. §§ 416.994(b)(5)(i)-(vii).
20 C.F.R. §§ 416.925 and 416.926.
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is
substantial evidence in the record as a whole to support the decision.3 Substantial evidence is “less
than a preponderance, but sufficient for reasonable minds to find it adequate to support the
In reviewing the record as a whole, the Court must consider both evidence that detracts from
the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be
reversed “simply because some evidence may support the opposite conclusion.”5
Ms. Henard’s Arguments for Reversal
Ms. Henard asserts that the Commissioner’s decision should be reversed because (1) the RFC
underestimated the effects of her depression and anxiety since February 10, 2010; (2) the ALJ erred
in relying on Dr. Williams’s opinion; and (3) the ALJ erroneously considered the fact that Ms.
Henard does not seek regular medical treatment. (Doc. No. 11)
While there may be some evidence that Ms. Henard continues to have limitations related to
her impairments, the ALJ’s finding that she could perform a full range of work is supported by the
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).
Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
Davis v. Apfel, 239 F.3d 962 (8th Cir. 2001) (“We may not reverse merely because
substantial evidence also exists that would support a contrary outcome, or because we would have
decided the case differently.”).
RFC and Regular Treatment
Ms. Henard argues that the RFC overstates her ability to work. She also contends that the
ALJ should not have considered her lack of regular treatment because she moved a few times and
has had issues with her marriage, money, and transportation.
First, the ALJ properly considered the fact that Ms. Henard had “not sought regular mental
health treatment” and had a history of failing to comply with her doctor’s recommendations.7 (Tr.
27) The ALJ noted that before being seen by Dr. Birmingham for a reassessment in January 2010,
Ms. Henard had received no mental health treatment in over a year. (Tr. 27-28) The ALJ also
considered that after Ms. Henard was informed on February 10, 2010, that her benefits were being
cut off, she responded by initiating mental health treatment again. (Tr. 28) The lack of treatment
the year or two before February 2010, followed by a brief surge, are things the ALJ properly
considered when assessing the credibility of Ms. Henard’s claims. Furthermore, even after she
resumed mental health treatment, Ms. Henard repeatedly missed appointments and was
noncompliant. (Tr. 26) For example, she failed to follow up with mental health treatment from May
2011 until December 2011, missed scheduled appointments in late December 2011 and again in
January 2012, and “was lost again to treatment” from January 2012 until October 2012. (Tr. 26, 28,
Additionally, notes from March 2011 indicate “no improvement” because Ms. Henard had
“not been compliant with treatment plan and cancelled appointments.” (Tr. 403) The notes also
indicated that treatment “would be more effective if client was compliant.” (Id.) Again, in
Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (An ALJ may weigh the credibility
of a claimant’s subjective complaints of pain by considering multiple factors, including whether or
not the claimant seeks regular medical treatment.); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th
Cir. 2005) (“A failure to follow a recommended course of treatment . . . weighs against a claimant’s
May 2012, doctors noted that Ms. Henard had made little improvement because she “was not
compliant with treatment plan.” (Tr. 450)
Though Ms. Henard claims that she was unable to afford treatment, she testified that her
Medicaid was cut off for only a couple of months. (Tr. 958) She also advised her doctor that she
could not afford a $10 co-pay; yet, Ms. Henard is a pack-a-day smoker. (Tr. 393, 405, 416, 967)
Smoking is an expensive, ongoing habit that can be considered when weighing Ms. Henard’s
Second, the ALJ recognized Ms. Henard’s treatment has been only conservative in nature9
and her symptoms appear to be controlled with medication.10 For example, she has not had
hallucinations since 2009, reported that her medications were “controlling some symptoms,” and
has not been hospitalized for psychiatric care since 2008. (Tr. 28, 431, 436) The ALJ concluded that
“[o]verall, the nature of what treatment she has received since February 2010 is not consistent with
debilitating mental impairments.” (Tr. 28)
Third, the ALJ considered Ms. Henard’s activities of daily living. He noted that “[u]ntil
recently, she lived alone in a house” and could “independently and effectively . . . perform a wide
range of adaptive activities . . . .” (Tr. 22) These findings were supported by Dr. Birmingham’s
assessment, in which he found that Ms. Henard was able “handle her financial affairs and other
Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (rejecting claimant’s position that he
could not afford medication when “there is no evidence to suggest that he sought any treatment
offered to indigents or chose to forgo smoking three packs of cigarettes a day to help finance pain
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (finding that an ALJ may rely on the fact
that a claimant has undergone only conservative treatment when evaluating the severity of the
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (“An impairment which can be
controlled by treatment or medication is not considered disabling.”).
affairs without assistance” and had “the ability to understand, to carry out and remember instructions
and to respond appropriately to supervision, coworkers, and work pressure in a simple work setting.”
Opinions by State Agency Doctors
Ms. Henard asserts that the ALJ erred in relying on the opinions of Dr. Birmingham and Dr.
Williams. (Doc. No. 11) She contends that Dr. Williams’s opinion is entitled to little weight
because he did not personally examine her and had only the benefit of Dr. Birmingham’s evaluation.
(Doc. No. 11) However, Dr. Williams’s opinion properly relied on Dr. Birmingham’s previous
Dr. Birmingham saw Ms. Henard in January 2010 to determine whether she continued to be
disabled. He noted that Ms. Henard had not received counseling in months and was alert and fully
oriented with all thinking processes and communication skills intact. (Tr. 342, 344) He noted that
her claims of “visual hallucinations seem grossly exaggerated or represent outright malingering.”
(Id.) Ultimately, he concluded that Ms. Henard was “exaggerating her complaints of psychosis and
bipolar disorder . . . [and] her descriptions of auditory and visual hallucinations [were] unrealistic
and unlikely.” (Tr. 343) He noted that she had “probable moderate depression” but it was likely
connected to having separated from her husband a month earlier. (Id.) Dr. Birmingham found that
Ms. Henard was “passively cooperative” and likely suffered from “situational reactive depression
. . . .” (Tr. 344)
Finally, Ms. Henard argues that Dr. Williams’s opinion is entitled to little weight because
it did not consider records from 2010 to present. This argument is without merit, since it was the
ALJ’s duty to consider the post-2010 records, which the ALJ did. Those records bolstered the
findings by Dr. Williams and Dr. Birmingham.
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the
transcript of the hearing, and the medical and other evidence. There is sufficient evidence in the
record as a whole to support the Commissioner’s decision.
THEREFORE, the Court hereby affirms the final determination of the Commissioner and
dismisses Plaintiff’s Complaint with prejudice.
IT IS SO ORDERED this 7th day of January, 2015.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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