Smith v. Social Security Administration
MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 9/25/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION H E L E N SMITH V. CASE NO. 3:08CV00081 BD PLAINTIFF
M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration M E M O R A N D U M OPINION AND ORDER
P la in tif f Helen Smith has appealed the final decision of the Commissioner of the S o c ia l Security Administration (the "Commissioner") denying her a period of disability a n d disability insurance benefits under Title II of the Social Security Act (the "Act"). For re a s o n s that follow, the decision of the Administrative Law Judge ("ALJ")1 is affirmed. I. Procedural History: P la in tif f filed the current application for disability and disability insurance benefits u n d e r Title II on October 11, 2005, alleging that she became disabled on July 19, 2002, d u e to diabetes mellitus with blurred vision, hypertension, and pain. (Tr. 34, 44) Plaintiff h a d filed prior applications for disability benefits on December 15, 2002. An ALJ denied th o s e applications on July 18, 2005. Due to the preclusive effect of that decision, the p e rio d under consideration in the present case began July 19, 2005.
The Honorable Lesly W. Mattingly, Administrative Law Judge.
The ALJ held a hearing on September 27, 2007, and Plaintiff appeared with her a tto rn e y Mike Sherman. (Tr. 339-360) The ALJ received testimony from Plaintiff and f ro m a vocational expert ("VE"), Elizabeth Clem. On January 24, 2008, the ALJ issued a d e c is io n denying Plaintiff benefits. (Tr. 13-19) After the administrative Appeals Council d e n ie d Plaintiff's request for review, she filed the current Complaint for Review of D e c is io n (docket entry #2) on May 27, 2008. II. B ackground: A t the time of the hearing, Plaintiff was a fifty-year-old female with an eleventhg ra d e education. She had past relevant work experience as a machine operator and a p a c k e r. Plaintiff was five feet tall and weighed one hundred thirty-two pounds. P la in tif f testified that drowsiness, leg pain, and vision problems prevented her f ro m working. (Tr. 348-351) She stated her blood pressure and diabetes medication c a u s e d the drowsiness. (Tr. 348) Plaintiff also testified that she took four ibuprofen per d a y for leg pain. (Tr. 349) Regarding vision, Plaintiff was able to watch and follow p ro g ra m s on television, but she had to be eight feet or closer to the screen. (Tr. 350) P la in tif f regularly sought treatment for her diabetes mellitus and hypertension. From 2002 until 2007, Plaintiff received treatment from the East Arkansas Family Health C e n te r. (Tr. 169-228) In March, 2004, providers recommended strict compliance with d ie t restrictions and exercise. (Tr. 186) Progress notes from April and June of 2004 s h o w that Plaintiff's diabetes was diet-controlled. (Tr. 185, 184) The treatment plan was
to decrease sugar and fat, and to exercise. (Tr. 185) On March 16, 2005, progress notes a d v is e d strict diet and exercise. (Tr. 178) On January 11, 2006, Plaintiff was prescribed Metformin 500; diet and exercise w e re again recommended. (Tr. 173) On April 19, 2006, Plaintiff was taking Inderal for h yp e rte n s io n and Metformin for diabetes. (Tr. 197) During visits in April, August, S e p te m b e r, and November of 2006, Plaintiff was alert and oriented. (Tr. 171-172) In F e b ru a ry and March of 2007, Plaintiff denied pain and was alert and oriented. (Tr. 169170) O n July 30, 2007, Plaintiff went to the Memphis Department of Veterans Affairs (" V A " ) Medical Center emergency room to request medication refills.2 (Tr. 252-255) H e r medical history indicated diabetes mellitus, hypertension, chronic headaches, and g la u c o m a . (Tr. 254) Plaintiff denied experiencing blurred vision, vision loss, shortness o f breath, dyspnea of exertion, chest pain, palpitations, or leg swelling. (Tr. 254) Her re s p ira to ry, cardiovascular, and musculoskeletal systems were normal. (Tr. 254) Plaintiff w a s treated for diabetes and hypertension and given ibuprofen, triamterene, lactulose, and lis in o p ril. (Tr. 252) The next day, Plaintiff went for a VA optometry consultation. (Tr. 238-242) She w a s diagnosed with glaucoma, diabetes without retinopathy, and hypertension without
It appears Plaintiff was eligible for VA services due to her husband's service c o n n e c te d disability. (Tr. 255) 3
retinopathy. (Tr. 242) She returned to the VA for glaucoma monitoring and testing. (Tr. 2 6 3 -2 7 0 ) On August 28, 2007, Plaintiff's vision was 20/25 or better. (Tr. 266) On September 28, 2007, Plaintiff returned to the VA for follow-up regarding her h yp e rte n s io n and diabetes. (Tr. 278-284) She reported abdominal pain and a right eye in ju ry that resulted from a fight. (Tr. 278) She denied vision problems. Subsequent a b d o m in a l examinations were negative. (Tr. 286, 330) Plaintiff's hypertension was "at g o a l" and she continued maxzide and lisinopril. (Tr. 279) Plaintiff's diabetes was "better a n d she continued metformin. (Tr. 279) P la in tif f returned to the VA on December 11, 2007, complaining of constant h e a d a c h e , fatigue, and decreased vision. (Tr. 306-308) She was given Tylenol #3 and re f e rre d to ophthalmology for her headache. Plaintiff's diabetes was at goal, and her h yp e rte n s io n was adequately controlled. (Tr. 308) P la in tif f returned to the VA for an optometry consultation on December 20, 2007. (Tr. 295-306) She reported that she had started seeing brief flashes of light two weeks b e f o re the consultation. She did not report fluctuations in vision. (Tr. 295) Plaintiff's a s s e s sm e n t was glaucoma with acceptably low intraocular pressure and longstanding h e a d a c h e , not vision related. (Tr. 305) Her vision was 20/25 or better. On March 13, 2008, Plaintiff returned to the VA for follow-up regarding her h yp e rte n s io n and diabetes. (Tr. 311-314) She complained of nausea and a decrease in a p p e tite . She denied fatigue or pain. (Tr. 312-313) Plaintiff's diabetes was controlled,
but due to nausea, her metformin prescription was changed to glyburide. (Tr. 313) P la in tif f 's prescription of atenalol was increased because her hypertension was "not at g o a l." (Tr. 313) Plaintiff was counseled to eat a low sodium, low fat diet, and to e x e rc ise . (Tr. 313) III. F in d in g s of the ALJ: The ALJ followed the required five-step sequential analysis set out in the social s e c u rity regulations, 20 C.F.R. § 404.1520, finding: (1) that Plaintiff had not engaged in s u b s ta n tia l gainful activity since the onset of her alleged disability; (2) that she suffered f ro m diabetes mellitus, hypertension, and glaucoma; (3) that Plaintiff did not have an im p a irm e n t, or combination of impairments, that rose to the level of severity for any im p a irm e n t listed in Appendix 1 to Subpart P, Regulation No. 4; (4) that she had past re le v a n t work as a machine operator and packer; and (5) that Plaintiff retained the re s id u a l functional capacity ("RFC") to perform a significant range of light work 3 on a s u s ta in e d basis. At step four, the ALJ found Plaintiff "not disabled" because her im p a irm e n ts did not prevent her from performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv) and 20 C.F.R. § 404.1520(f).
"Light work" is defined as work involving "lifting no more than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). Light work "requires a good deal of walking or standing, or when it in v o lv e s sitting most of the time with some pushing and pulling of arm or leg controls." Id. 5
Plaintiff contends that the findings of the ALJ are not supported by substantial e v id e n c e and contain errors of law based on the following: (1) the ALJ's credibility d e te rm in a tio n is not supported by substantial evidence; and, (2) the ALJ's finding that P la in tif f could return to her past relevant work is not supported by substantial evidence. IV. L e g a l Analysis: In reviewing the ALJ's decision, this Court must determine whether there is s u b s ta n tia l evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g). This review function is limited, and the decision of the ALJ must be a f f irm e d "if the record contains substantial evidence to support it." Edwards v. Barnhart, 3 1 4 F.3d 964, 966 (8th Cir. 2003). "Substantial evidence is less than a preponderance but enough so that a reasonable m in d could find it adequate to support the decision." Id. Evidence that both supports and d e tra c ts from the ALJ's decision must be considered, but the decision cannot be reversed " m e re ly because there exists substantial evidence supporting a different outcome." Id. "Rather, if, after reviewing the record . . . it is possible to draw two inconsistent positions f ro m the evidence and one of those positions represents the [ALJ's] findings, we must a f f irm the decision of the [ALJ]." Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (c ita tio n s and quotations omitted). Thus, the Court's function on review is to determine w h e th e r the Commissioner's decision is supported by substantial evidence on the record
as a whole and whether it is based on legal error. Long v. Chater, 108 F.3d 185, 187 (8th C ir. 1997); see also, 42 U.S.C. § 405(g). A. The ALJ's Credibility Determination:
U n d e r 20 C.F.R. §§ 404.1529, the ALJ must consider all symptoms, including p a in , and the extent to which these symptoms are consistent with the objective medical e v id e n c e . The ALJ is in the best position to gauge the credibility of testimony, and those c re d ib ility determinations are entitled to some deference. Estes v. Barnhart, 275 F.3d 7 2 2 , 724 (8th Cir. 2002). An ALJ's conclusions may be upheld if the record as a whole s u p p o rts them. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). In this case, the ALJ acknowledged Plaintiff's complaints of pain and drowsiness, a n d considered these subjective complaints under the guidelines set out in Polaski v. H e c k le r , 751 F.2d 943 (8th Cir. 1984). (Tr. 14-16) The ALJ concluded that, in view of th e evidence as a whole, Plaintiff's complaints were not totally credible. (Tr. 18) Pain is largely subjective; thus, in evaluating pain, an ALJ must rely on c irc u m s ta n tia l evidence. Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995). Pain is c o n s id e re d disabling, however, only when it is not remediable and is so severe that it p re c lu d e s a claimant from engaging in any form of substantial gainful activity. Johnston v . Shalala, 42 F.3d 448, 451 (8th Cir. 1994), quoting Cruse v. Bowen, 867 F.2d 1183, 1 1 8 6 (8th Cir. 1989).
In this case, Plaintiff's pain was treated with ibuprofen. She periodically c o m p la in e d of headaches and abdominal pain, but only alleged disabling leg and back p a in . The medical records provide little support for the Plaintiff's allegations of the s e v e rity of her pain. T h e medical records show that between April 19, 2006, and February 22, 2008, P la in tif f rarely complained of leg pain. At numerous doctor visits, she complained of no p a in at all. (Tr. 169, 170, 231, 233, 250, 265, 313, 333) On May 7, 2007, Plaintiff d e s c rib e d her pain as a "7" on a ten-point scale as a result of splinters in her finger. (Tr. 233) On September 28, 2007, Plaintiff had pain and swelling from being punched in the e ye when she stepped in the middle of a fight involving her niece. (Tr. 278) These in s ta n c e s of pain are not related to Plaintiff's alleged impairments. Regardless, the m e d ic a l records show that ibuprofen was effective in treating Plaintiff's pain. If an im p a irm e n t can be controlled by medication, it can not be considered disabling. Brown v. B a rn h a r t, 390 F.3d 535, 540 (8th Cir. 2004) (quoting Roth v. Shalala, 45 F.3d 279, 282 (8 th Cir. 1995)). Plaintiff testified that drowsiness, caused by blood pressure and diabetes m e d ic a tio n s , was the only reason she could not sit and stand periodically to perform work. (Tr. 354-355) Plaintiff's allegations of drowsiness are less supported even than her a lle g a tio n s of disabling pain.
Plaintiff testified that she would wake at 8 a.m., take a bath, eat breakfast, take her m e d ic a tio n s , then go back to sleep. (Tr. 355-356) She stated she would wake again at 12 p .m ., take more medications, and watch television. (Tr. 355) Plaintiff would then go to b e d at 6 p.m. and sleep until the next morning. (Tr. 356) Plaintiff testified that she was a w a k e only four hours each day. (Tr. 357) None of the medical records support Plaintiff's allegations of a near-comatose s ta te due to side effects of her blood pressure and diabetes medications. Instead, the re c o rd s described Plaintiff as alert, and she even denied fatigue. (Tr. 169-172, 278, 307, 3 1 2 -3 1 3 ) Instead, the medical record shows that Plaintiff complained of fatigue only o n c e to her doctors. (Tr. 306-308) Beyond this one instance, there is no evidence that P la in tif f ever told her doctors about her drowsiness or requested different medications. Plaintiff described extremely limited physical abilities, but the record provides no m e d ic a l support for the claimed limitations. None of Plaintiff's health care providers re s tric te d Plaintiff's physical activities. In fact, they consistently and repeatedly advised P la in tif f to exercise. (Tr. 173, 178, 185, 186, 313) Plaintiff testified that she could not perform any household chores. (Tr. 355-357) She testified that her disabled husband did the grocery shopping and housework, and that h e r sister did the laundry. (Tr. 355-356). Plaintiff previously stated, however, that she c o u ld cook, clean, iron, and do laundry. (Tr. 122) She specifically stated that she s h o p p e d for clothing and food once a week. (Tr. 123)
The medical evidence in this case contradicts Plaintiff's subjective allegations of lim ita tio n s . Many of Plaintiff's alleged limitations are completely unsupported. Her prior s ta te m e n ts contradicted her testimony at the hearing. While this Court does not doubt that P la in tif f 's impairments caused some limitations, after reviewing the entire record, it is c le a r the ALJ did not err in finding Plaintiff's allegations less than fully credible. B. P la in tiff's Residual Functional Capacity:
P la in tif f argues the ALJ erred in finding Plaintiff had the RFC to perform her past re le v a n t work. Substantial evidence in the record, however, supports the ALJ's finding th a t Plaintiff could perform her past work as a machine operator or packer. The ALJ bears the initial responsibility for assessing Plaintiff's RFC. Anderson v. S h a la la , 51 F.3d 777, 779 (8th Cir. 1995). Plaintiff's RFC is what she can do despite her lim ita tio n s . 20 C.F.R. § 404.1545 (2001)(2003). In determining Plaintiff's RFC, the ALJ h a s a duty to establish, by competent medical evidence, the physical and mental activity th a t Plaintiff can perform in a work setting, after giving appropriate consideration to all of h e r impairments that are supported by the record. Ostronski v. Chater, 94 F.3d 413, 418 (8 th Cir. 1996). The ALJ must determine the Plaintiff's RFC based on all relevant evidence, in c lu d in g medical records, observations of treating physicians and others, and Plaintiff's o w n descriptions of her limitations. Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2 0 0 3 ); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
Plaintiff argues that "the ALJ [did] not have before him evidence of [Plaintiff's] w o rk related limitations."4 (docket entry #11, p. 12) This appears to be an attempt to p re m a tu re ly shift the burden to the Commissioner. While the ALJ has a duty to assess R F C , it is Plaintiff's burden to prove her RFC. Masterson v. Barnhart, 363 F.3d 731, 737 (8 th Cir. 2004); Baldwin, 349 F.3d at 556; Pearsall, 274 F.3d at 1217; Young, 221 F.3d a t1 0 6 9 n.5; Anderson, 51 F.3d at 779. In this case, the burden never shifted to the C o m m is s io n e r. All of Plaintiff's relevant medical records were in the file. Plaintiff's a c k n o w le d g m e n t that the record did not evidence work-related limitations, even if true, is c o u n te r to her alleged entitlement to disability benefits. Plaintiff had the burden of p ro v in g her disability, and thus bore the responsibility of presenting the strongest case p o s s ib le . Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Plaintiff failed to identify any additional evidence she believed necessary to d e te rm in e her RFC. She testified that the side effects of her medication and leg pain were th e only impairments preventing her from working. (Tr. 348-351, 354-355) This te s tim o n y indicates that no amount of additional testing would evidence exertional lim ita tio n s beyond the ALJ's findings. In addition, it is of some relevance that Plaintiff's
The record contained medical evidence (Tr. 138-165, 169-309), a disability d e te rm in a tio n case analysis rating Plaintiff's physical impairments non severe (Tr. 1661 6 8 ), prior job descriptions (Tr. 75-76, 84-85, 111-112), Plaintiff's testimony regarding lim ita tio n s (Tr. 342-358), and additional evidence. 11
attorney did not identify, obtain, or try to obtain, evidence which Plaintiff now complains is not in the record. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). T h e ALJ found that Plaintiff retained the RFC to perform her past relevant work, w h ic h was exertionally light or sedentary.5 Plaintiff argues that: [ g ]iv e n [her] age and education, had the ALJ found that she could only p e rf o rm sedentary work, and could not perform past relevant work, 20 C .F .R . Pt. 404, Subpt. P, App. 2 Rule 201.09 would direct a conclusion of " d is a b le d " for Plaintiff. As such, the residual functional capacity issue and its impact on Smith's past work is especially crucial. (docket entry #11, p. 13) T h is argument has no merit, as the ALJ determined that one job that constituted past re le v a n t work was performed at the sedentary level. This means even if Plaintiff was c a p a b le of performing only sedentary work, she still could perform past relevant work, a n d 20 C.F.R. Pt. 404, Subpt. P, App. 2 Rule 201.09 would not apply. Plaintiff has sought medical care for her alleged impairments, but none of her tre a tin g physicians noted any significant limitations on her activities that could not be c o n tro lle d by medication. Instead, proper diet, exercise, and medication were re c o m m e n d e d . After reviewing the entire record, it is clear substantial evidence supports the A L J 's determination that Plaintiff could participate in light and sedentary work, with
The exertion level of Plaintiff's past work was supported by VE testimony (Tr. 3 5 9 -3 6 0 ), prior job descriptions (Tr. 75-76, 84-85, 111-112), and Plaintiff's testimony re g a rd in g her past relevant work (Tr. 345-349). 12
noted limitations. The only contrary evidence was Plaintiff's subjective complaints, w h ic h the ALJ did not find entirely credible. V. Conclusion: T h e re is substantial evidence in the record to support the Commissioner's denial of b e n e f its to Plaintiff. It is clear, as the ALJ pointed out, that Plaintiff suffered at least one s e v e re impairment. There is sufficient evidence in the record, however, to support the A L J 's assessment that Plaintiff retained the capacity to perform her past relevant work. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the case. IT IS SO ORDERED this 25th day of September, 2009.
____________________________________ U N IT E D STATES MAGISTRATE JUDGE
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