Foster v. Social Security Administration
ORDER AFFIRMING THE COMMISSIONER: Ms. Foster's 2 request for relief is denied and the decision denying the application for benefits is affirmed. Signed by Magistrate Judge Beth Deere on 7/28/2016. (mef)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 2:15-CV-169-BD
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER
Plaintiff Angienette Foster brings this action for review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her claim
for a period of disability and Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (the “Act”). For reasons that follow, the decision of the
Administrative Law Judge (“ALJ”) is AFFIRMED.
Ms. Foster filed her application for DIB on March 7, 2013. (Tr. 11) She also filed
an application for Supplemental Security Income (“SSI”) under Title XVI of the Act.
(Id.) Ms. Foster alleged disability since February 28, 2013, due to fracture of the lower
limbs and seizures. (Tr. 73) She was insured for DIB through the end of December 31,
2017. (Tr. 15) Her claims were denied at the initial and reconsideration levels. (Tr. 11)
On April 10, 2014, a hearing was held before an ALJ, where Ms. Foster was
represented by her attorney. (Tr. 11) On June 23, 2014, the ALJ denied Ms. Foster’s
claims. (Tr. 21) On September 14, 2015, the Appeals Council denied her request for
review. (Tr. 1) Ms. Foster seeks judicial review of the Commissioner’s denial of her
application. The parties consented to the jurisdiction of the Magistrate Judge, and the
case is ripe for decision.
Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; (4) if not, whether the impairment (or combination of
impairments) prevented the claimant from performing past relevant work1; and (5) 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. § 416.920(a)-(g).
The ALJ found that Ms. Foster had not engaged in substantial gainful activity
since February 28, 2013. (Tr. 15) Ms. Foster’s multiple fractures/lacerations post motor
vehicle accident, right ulnar fracture, left femur fractures, right open tibia-fibula, and
seizure disorder were deemed severe impairments. (Id.) According to the ALJ, Ms.
Foster did not have an impairment or combination of impairments that met or equaled an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. § 416.920(a)(4)(iv).
The ALJ determined that Ms. Foster retained the residual functional capacity to
perform light work limited to occasional stooping, crouching, crawling, kneeling,
balancing, and climbing of ramps/stairs (but no climbing of ladders/scaffolds). (Tr. 16)
She was required to use a cane and avoid exposed hazards such as unprotected heights or
dangerous machinery. (Id.) With the assistance of a vocational expert, the ALJ found
that Ms. Foster could perform her past relevant work as a data entry clerk, an assembly
line worker, and a receptionist. (Tr. 19) In the alternative, the ALJ found that,
considering Ms. Foster’s age, education, work history, and residual functioning capacity,
she would be able to perform other work in the economy as a cashier II, general cashier,
and ticket seller. (Tr. 20) Accordingly, the ALJ found that Ms. Foster was not disabled.
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the administrative record to support the decision. Slusser
v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); 42 U.S.C. § 405(g). “Substantial evidence is
evidence that a reasonable mind would find adequate to support the ALJ’s conclusion.”
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007). 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.” Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir.
2009)(quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
Ms. Foster asserts that the ALJ’s findings are not supported by substantial
evidence: (1) because the ALJ failed to develop the record regarding Ms. Foster’s
seizures, she erred in finding that Ms. Foster did not meet listing 11.02 or 11.03. 20
C.F.R. Part 404, Subpart P, Appendix 1; and (2) because the ALJ’s credibility analysis
was flawed. (docket entry #16 at 10, 13)
A claimant has the burden of proving that an impairment, or combination of
impairments, meets or equals a Listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th
Cir. 2004). “To meet a listing, an impairment must meet all of the listing’s specified
criteria.” Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010) (citing references
In order to meet Listing 11.02, a claimant must have seizures more than once a
month in spite of at least 3 months of treatment, and meet criteria (A): daytime episodes
including loss of consciousness and convulsive seizures; and (B): nocturnal episodes
manifesting residuals which interfere significantly with activity during the day. (#16 at
11) In order to meet Listing 11.03, a claimant must have seizures occurring more than
once a month in spite of at least 3 months of treatment, with alteration of awareness or
loss of consciousness and transient postictal manifestations of unconventional behavior or
significant activity during the day. (Id.) Ms. Foster did not meet either Listing.
The record reflects Ms. Foster’s complaints on April 29, 2013 regarding her
seizures, including shaking, biting, loss of consciousness, and hallucinations (Tr. 385).
She also complained on May 31, 2013 of headaches, dizziness, blurry vision, and passing
out due to her seizures. (Tr. 365) She was prescribed Depakote. (Id.) Ms. Foster’s
complaints, however, were not accompanied by any objective testing or diagnosis of a
seizure disorder. (#17 at 8) Although Ms. Foster complained of 1-2 seizures per week,
she reported she had not had a seizure in two weeks since being on medication for only
one month. Impairments that are controllable or amenable to treatment do not support a
finding of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)
Ms. Foster admits that she does not meet the three-month treatment requirement to
meet listing 11.02 or 11.03. (#16 at 11) She argues that if her symptoms persisted
beyond the three-month period she would meet a listing. That is speculation. There is no
record of follow-up treatment for seizures after May of 2013. Ms. Foster’s testimony at
the hearing in April 2014 that she was still having seizures is not supported by any visits
to a treating physician. (#16 at 12) The ALJ notes that Ms. Foster did not visit the
emergency room for any seizure activity, and prescription of one medication for one
month does not indicate a severe disability (there is no treatment record to show the
effects of Depakote beyond May 2013). (Tr. 17) Subjective complaints “may be
discounted if there are inconsistencies in the evidence as a whole, and the ALJ may
properly rely upon discrepancies between [a claimant’s] allegations of pain and her
treatment history, medicinal selections, and daily activities in disregarding her subjective
complaints.” Davis v. Apfel, 239 F.3d 962, 968 (8th Cir. 2011) There is simply not
enough objective evidence to support a finding that Ms. Foster met a Listing. The ALJ’s
discussion of her treatment gaps and responses to medication support her decision.
Additionally, there is no merit to Ms. Foster’s contention that the ALJ did not fully
develop the record. Ms. Foster had the burden of proving her disability. Baumgarten v.
Chater, 75 F.3d 366, 368 (8th Cir. 1996). The ALJ need not make her case for her.
When Ms. Foster’s attorney was asked at the hearing if the record was complete, he
responded in the affirmative. (#17 at 9). He did not ask the ALJ for a consultative
examination or for follow-up evidence from Ms. Foster’s doctor. Ms. Foster had plenty
of time to develop the record on her seizure disorder (nearly a year from May 2013 to
April 2014) but did not.
The ALJ’s credibility analysis
In evaluating Ms. Foster’s credibility, the ALJ properly considered the factors set
forth by the Eighth Circuit in Polaski v. Heckler. The ALJ must consider “the claimant’s
prior work history; daily activities; duration, frequency, and intensity of pain; dosage,
effectiveness and side effects of medication; precipitating and aggravating factors; and
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). As for
the seizures, the ALJ considered the record and found Ms. Foster’s claim that she had 1-2
seizures per week and could only sit and stand for two hours to be unfounded. The record
shows that Ms. Foster sought only conservative treatment for her seizures, inconsistently
at that. On several visits to her orthopedic doctor for injuries resulting from a car wreck,
she did not mention seizures. Her lack of complaints to a treating source detracts from
her allegations of a disabling impairment.
Regarding the injuries from the car wreck, the ALJ found that those constituted
severe impairments. The medical evidence, however, shows that Ms. Foster recovered on
a reasonable time line from those injuries. On a follow-up visit after surgery, she
reported that she had “no complaints.” (Tr. 388) Upon return, it was noted that Plaintiff
looked “satisfactory post-op.” (Tr. 386) Plaintiff next reported to her doctor that she was
doing well three months after her surgery. (Tr. 383) No doctors placed her on significant
restrictions for either seizures or wreck injuries. (Tr. 18) A lack of significant restrictions
placed on a claimant by her physicians undermines her allegation of disability. Tennant v.
Apfel, 224 F.3d 869, 870-71 (8th Cir. 2000)(ALJ properly relied on lack of physicianordered limitations to discredit claimant).
A function report Ms. Foster filled out in March 2013 portrays her as a virtual
invalid incapable of doing most activities of daily living. At the hearing in April 2014,
however, she testified that she took online classes, could help with cooking, could fold
laundry, and grocery shop. (Tr. 39-40) This testimony comports with the medical
evidence showing improvement in her conditions over the course of a year. The ALJ
ascribed the correct weight to Ms. Foster’s complaints, finding that her credibility as to
the extent of her impairments was in doubt.
Substantial evidence supports the ALJ’s decision denying Ms. Foster’s application.
The ALJ made no legal error. For these reasons, Ms. Foster’s request for relief (#2) is
DENIED, and the decision denying the application for benefits is AFFIRMED.
IT IS SO ORDERED this 28th day of July, 2016.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?