Olson v. Social Security Administration
ORDER, having determined that substantial evidence supports the Commissioner's denial of Olson's application for SSI, the Court DENIES Olson's request for relief & AFFIRMS the Commissioner's decision. Signed by Magistrate Judge H. David Young on 7/17/2012. (jct)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Michael J. Astrue, Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER’S DECISION
In this case,1 plaintiff‐claimant Tisha Olson (nee Tisha Nunally2) sought judicial
review of defendant Commissioner Michael J. Astrue’s denial of her application for
Supplemental Security Income (SSI).3 Olson asked the court to reverse the
Commissioner’s decision and remand her case to the Social Security Administration
(SSA) for the award of benefits.4 The undersigned has authority to resolve this case
because the parties consented to the jurisdiction of the magistrate judge.5 After
considering the record, the arguments of the parties, and the applicable law, this court
affirms the Commissioner’s decision.
Scope of judicial review. In reviewing the denial of an application for SSI, the
Docket entry # 2.
About half of the documents relevant to this case reflect Olson’s maiden name.
SSA record at p. 10 (ALJ’s unfavorable decision).
Docket entry # 2, p. 2.
See 28 U.S.C. § 636(c); docket entry # 4.
court must determine whether “the Commissionerʹs findings are supported by
substantial evidence on the record as a whole.”6 “Substantial evidence is relevant
evidence that a reasonable mind might find adequate to support the Commissioner’s
decision.”7 In assessing the substantiality of the evidence, the court must consider
evidence that detracts from the Commissioner’s decision as well as evidence that
supports it.8 The court may not reverse the Commissioner’s decision simply because
substantial evidence supports a different result.9 The Commissioner’s decision may not
be based on legal error.10
The impairment underlying Olson’s application. Olson’s application flowed
from an ATV accident that occurred on July 30, 2007, when Olson was 16 years old.
Olson swerved to miss another ATV and caused the ATV to roll over three times.11 The
accident left Olson with a burst fracture at T6 and T7 of the thoracic spine.12 In laymen’s
Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005).
Moore, 413 F.3d at 721.
Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
See Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 688 (8th Cir. 2005).
Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (explaining that the
Commissioner’s decision must not be based on legal error).
SSA record at pp. 224 & 260.
Id. at pp. 198, 209 & 294.
terms, the accident broke Olsen’s back. The accident also fractured a couple of ribs.13
Olson’s mother applied for SSI on Olson’s behalf.14
One week after the accident, Dr. Richard McCarthy—an orthopaedic
surgeon—performed a posterior stabilization from T3 to T11.15 The procedure
stabilized Olson’s thoracic spine using a bone graft from the right iliac crest bone (bone
in the hip), two titanium rods, and multiple screws.16 Although the medical records do
not indicate why the surgery took place so long after the accident, Olson testified that
Dr. McCarthy was the only doctor who would operate on her.17
Olson was discharged from the hospital four days later, with instructions to walk
Id. at p. 294.
Id. at p. 110.
Id. at p. 198.
See Sam Wiesel, M.D. and Laura Obiso, 4‐13A Attorneys’ Textbook of Med. (3d
ed.) P 13A.60 (“Surgical stabilization has two components. The first component is
arthrodesis, or fusion. The goal of fusion is to induce adjacent vertebrae above and
below the injury to heal together into a solid block of bone, eliminating any potential
movement between them. This usually involves placement of a bone graft between the
vertebrae. Bone grafts may be placed anteriorly, between adjacent vertebral bodies, or
posteriorly, between adjacent laminae, facets, or transverse processes. The second
component of surgical stabilization involves internal fixation. Internal fixation provides
immediate strength and maintains anatomic alignment during the time it takes for
fusion to occur. Internal fixation usually involves the implantation of some combination
of wire, hooks, screws, and/or rods.”).
SSA record at p. 44.
daily and to use a thoracic lumbar sacral orthotic (TLSO) whenever she was up.18 A
TLSO is a plastic support that fits over the chest, abdomen and upper pelvis to support
an unstable spine. Olson called the TLSO a body cast.19
Four months after her surgery, Olson began physical therapy.20 Less than five
months after her surgery, Dr. McCarthy released Olson from wearing the body cast,
instructed Olson to continue “doing muscle strengthening,” and to return in six
The Commissioner’s decision. Olson’s mother applied for SSI before Olson
turned 18 years old. Olson turned 18 before the Commissioner’s administrative law
judge (ALJ) issued the unfavorable decision. Because the disability‐determination
process is different for a clamant under age 18 than a claimant who is at least 18, the
ALJ evaluated Olson’s application using both processes.22
The child process. At step one of the childhood‐disability‐determination process,
the ALJ determined Olson had not engaged in substantial gainful activity since her ATV
Id. at p. 215.
Id. at p. 45.
Id. at p. 361.
Id. at p. 353.
See 20 C.F.R. § 416.924 (child process); 20 C.F.R. § 416.920 (adult process).
accident.23 At step two, the ALJ determined Olson had severe physical impairments
before she turned 18; specifically, fracture of the thoracic spine and vertebral fracture
with spine cord injury.24 At step three, the ALJ determined Olson’s impairments did
not meet or medically equal an impairment listed in the Commissioner’s regulations.
The ALJ also determined that Olson’s impairments did not functionally equal a listed
impairment.25 Thus, the ALJ concluded that Olson was not disabled before age 18.
The adult process. The ALJ did not make a specific finding at step one of the
adult‐disability‐determination process, having already determined that Olson had not
engaged in substantial gainful activity. At steps two and three, the ALJ determined that
Olson had the same severe impairments, but the impairments did not meet or medically
equal a listed impairment.26 At step four, the ALJ determined that since turning 18,
Olson had the residual functional capacity (RFC) to lift 20 pounds occasionally and 10
pounds frequently; and to sit 6‐8 hours in a 8‐hour day, 1‐2 hours without
interruption.27 The ALJ found that Olson’s capacity to stand was limited and that Olson
needed a sit/stand option. The ALJ also found that Olson could not reach overhead
SSA record at p. 14.
Id. at p. 15.
Id. at pp. 18‐22.
Id. at p. 22.
with her left arm due to shoulder pain. At step five, the ALJ consulted a vocational
expert and determined Olson was capable of making a successful adjustment to work
that existed in significant numbers in the national economy.28 Thus, the ALJ concluded
that Olson was not disabled since turning 18.
The disputed issue. The parties do not dispute whether the ALJ followed the
required processes. Instead, the parties dispute whether Olson’s physical impairment
met the disability duration requirement. Olson argued that the ALJ placed too much
weight on Dr. McCarthy’s last office note. She insisted that the ALJ misinterpreted the
note to mean that she had healed to a degree that she could play softball and that the
ALJ disregarded her testimony to the contrary.29 Despite this complaint, substantial
evidence supported the ALJ’s determination that Olson’s impairments did not meet the
To be considered disabled—and thus eligible for SSI—a person under age 18
must show she “has a medically determinable physical…impairment, which results in
marked and severe functional limitations, and 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
Id. at p. 24.
Docket entry # 9, pp. 5‐10.
months.”30 To be “severe,” a child’s impairment must result in more than minimal
functional limitations.31 If a child has a severe impairment, the Commissioner must
consider the child’s age‐appropriate functioning in relation to: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others;
(4) moving around and manipulating objects; (5) caring for oneself; and (6) health and
physical well being.32 If a child’s impairment causes an “extreme” limitation in one of
these functional domains, or a “marked” limitation in at least two domains, “and if the
twelve‐month durational requirement is met, disability is established.”33
Olson’s impairments implicated the latter three domains; however, the ALJ
relied on Dr. McCarthy’s office note in considering the domain of “moving about and
manipulating objects.”34 That domain applies to how the claimant can move her body
42 U.S.C. § 1382c(a)(3)(C)(i) (italics added).
See Neal ex rel. Walker v. Barnhart, 405 F.3d 685, 688 (8th Cir. 2005) (Under this
step, if the impairments result in no more than minimal functional limitations, the
impairments are not severe and the child is not disabled.”); Pepper ex rel. Gardner v.
Barnhart, 342 F.3d 853, 854 (8th Cir. 2003) (“Under the second step, if the impairments
result in no more than minimal functional limitations, the impairments are not severe
and the child is not disabled.”).
20 C.F.R. § 416.926a(a)(1)(i)‐(vi).
Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (italics added).
SSA record at p. 20.
from one place to another and how can she move and manipulate things.35 The ALJ
determined that Olson had less than a marked limitation in the domain, observing that
Dr. McCarthy released Olson five months after her accident and “stated she would be
able to play softball and resume her normal activities.”36
In general, [m]oving your body involves several different kinds of actions:
Rolling your body; rising or pulling yourself from a sitting to a standing
position; pushing yourself up; raising your head, arms, and legs, and
twisting your hands and feet; balancing your weight on your legs and feet;
shifting your weight while sitting or standing; transferring yourself from
one surface to another; lowering yourself to or toward the floor as when
bending, kneeling, stooping, or crouching; moving yourself forward and
backward in space as when crawling, walking, or running, and
negotiating different terrains (e.g., curbs, steps, and hills).
Moving and manipulating things involves several different kinds of
actions: Engaging your upper and lower body to push, pull, lift, or carry
objects from one place to another; controlling your shoulders, arms, and
hands to hold or transfer objects; coordinating your eyes and hands to
manipulate small objects or parts of objects.37
As an adolescent, you should be able to use your motor skills freely and
easily to get about your school, the neighborhood, and the community.
You should be able to participate in a full range of individual and group
physical fitness activities. You should show mature skills in activities
requiring eye‐hand coordination, and should have the fine motor skills
needed to write efficiently or type on a keyboard.38
20 C.F.R. § 416.926a(j).
SSA record at p. 20.
20 C.F.R. § 416.926a(j)(1)(i) & (ii).
20 C.F.R. § 416.926a(j)(2)(v).
Logically, an adolescent with a broken back, or an adolescent wearing a body
cast following spinal stabilization, would be limited in moving her body from one place
to another, and perhaps in moving and manipulating objects. The dispositive question
is whether Olson was limited for a continuous period of at least 12 months. The
following evidence supported the ALJ’s decision that Olson was not limited for a
continuous period of at least 12 months: (1) Dr. McCarthy’s treatment notes, (2) Olson’s
discharge from physical therapy, and (3) evidence of Olson’s subsequent activities.
Dr. McCarthy’s treatment notes. Olson saw Dr. McCarthy twice after her
hospital discharge. On September 24, 2007—one month and 17 days after her
surgery—Olson had no complaints other than some cutaneous (pertaining to the skin)
numbness on her right thigh from positioning during surgery.39 Dr. McCarthy reported
that Olson could fully forward bend and back bend without difficulty; she could also
side bend without problems and she had normal heel‐toe gait. Xrays showed good
alignment and good position to her fracture. Dr. McCarthy reported that Olson was
healing quite well, but cautioned that Olson must be cautious for first 4 to 6 months.
Olson returned to Dr. McCarthy for a follow‐up visit on January 2, 2008—4
months and 26 days after surgery. Olson “had some complaints about her left leg going
out from under her,” but the “sensation overall in her left leg ha[d] improved, and her
SSA record at p. 270.
motor function ha[d] improved as well.”40 Dr. McCarthy reported that Olson had
“some single‐toe‐rise weakness on the left side, but she [was] able to do it.” Xrays
showed that she had good alignment and good fusion taking place. Dr. McCarthy
recommended discontinuing the brace, continuing with muscle strengthening, and
returning in six months. Dr. McCarthy opined that Olson would be able to play
softball, but recommended no physical education and no full‐contact sports for the time
Dr. McCarthy’s treatment notes supported the ALJ’s determination because Dr.
McCarthy observed no limitations preventing Olson from using her motor skills to
freely and easily to get about her school, the neighborhood, and the community.
Although Dr. McCarthy restricted Olson from participating in a full range of individual
and group physical fitness activities for the time being, he opined that Olson would heal
enough to play team sports. Dr. McCarthy likewise observed no limitations in activities
requiring eye‐hand coordination or the fine motor skills needed to write efficiently or
type on a keyboard.
Olson’s discharge from physical therapy. Olson began physical therapy on
December 17, 2007—4 months and 7 days after her accident. She completed her
physical therapy on February 27, 2008—6 months and 28 days after her accident. At
Id. at p. 353.
discharge, Olson’s physical therapist found the following: active lumbar motion was
within functional limits , active thoracic motion was normal, lumbar muscle test was
normal, thoracic muscle test was normal, thoracic muscle length was normal, and back
muscle strength was within normal limits.41 The physical therapist recorded Olson’s
pain as having decreased from 5 to 0 using a pain scale of 1 to 10. The physical
therapist’s discharge findings supported the ALJ’s determination because the findings
reflected no limitations in moving the body from one place to another.
Evidence of Olson’s subsequent activities. The record contained no additional
medical records about treatment for Olson’s back, but subsequent medical records are
probative of Olson’s daily activities. Most of those records documented pre‐natal and
On March 13, 2008—7 months and 13 days after the ATV accident—Olson’s first
pregnancy ended in a miscarriage.42 Her physician recorded no functional limitations
during office visits.43
On March 25, 2008—7 months and 25 days after the accident—Olson went to the
Id. at pp. 361‐65.
Id. at p. 584.
See id. at 605 (Mar. 6, 2008); p. 594 (Mar. 10, 2008); p. 592 (Mar. 13, 2008); p. 584
(Apr. 2, 2008).
hospital emergency room and reported that her left leg gave way, causing her to fall.44
She complained about a twisted right ankle. Xrays of the right ankle were normal.45
She was released with a walking boot and Tylenol.
On April 9, 2008—8 months and 10 days after the accident—Olson sought a pre‐
participation physical evaluation to play softball.46 The examining physician cleared
Olson to play if she got a letter from her back doctor.
On July 1, 2008—11 months and 1 day after her accident—Olson went to the
hospital emergency room and complained about a leg burn.47 Olson reported that she
burned her leg on the tailpipe of a motorcycle. She had no other complaint, except for
Evidence of Olson’s activities after completing her physical therapy supported
the ALJ’s determination because it showed that Olson engaged in a wide range of
physical activity within 12 months of her accident. Notably, Olson did not return to Dr.
McCarthy event though he advised her to return in six months.
The foregoing evidences constituted substantial evidence because it related to the
12‐month period following the ATV accident and because a reasonable mind would
Id. at p. 796.
Id. at 799.
Id. at p. 827.
Id. at p. 821.
consider the evidence adequate to support the ALJ’s determination that Olson had less
than a marked limitation in moving the body or manipulating things. Olson argued
that the ALJ misinterpreted Dr. McCarthy’s office note as a release to play softball, but
nothing in the opinion supports that interpretation. Olson testified that one year after
her accident she still could not walk that well and continued to fall,48 but her activities
contradicted her testimony. The ALJ did not err in determining that Olson was not
disabled before turning 18.
To the extent Olson relied on her impairments after turning 18, her medical
records after turning 18 supported the ALJ’s decision that Olson’s impairments did not
meet the duration requirement. Like a child SSI claimant, an adult SSI claimant must
have a “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 twelve
months.”49 Olson’s medical records after turning 18 documented two pregnancies, but
no limitations in exertional functions such as sitting, standing, walking, lifting, carrying,
pushing, and pulling. Nevertheless, the ALJ recognized that it was sometimes difficult
for Olson to stand for long periods of time and to reach overhead with her left arm. The
ALJ incorporated those limitations in Olson’s RFC.
Id. at p. 46.
42 U.S.C. § 1382c(a)(3)(A) (italics added).
At the time of her hearing on December 4, 2009, Olson was caring for a six‐
month‐old baby. The child was born on June 5, 2009—1 year, 10 months and 5 days
after the ATV accident.50 Olson testified that she wanted to become a teacher and she
thought she could do it if she could switch between sitting and standing.51 Taking care
of an infant and planning to become a teacher contradict Olson’s allegation of disability.
The ALJ did not err in determining that Olson was not disabled since turning 18.
Conclusion. Having determined that substantial evidence supports the
Commissioner’s denial of Olson’s application for SSI, the court DENIES Olson’s request
for relief (docket entry # 2) and AFFIRMS the Commissioner’s decision.
It is so ordered this _17__ day of July, 2012.
United States Magistrate Judge
SSA record at p. 502.
Id. at p. 48.
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