Andrews v. Social Security Administration

Filing 13

ORDER affirming the decision of the Commissioner and denying 2 Complaint. Signed by Magistrate Judge Beth Deere on 10/23/2013. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

SHELIA ESTES ANDREWS
V.

PLAINTIFF

CASE NO.: 3:12CV00255 BD

CAROLYN W. COLVIN,1 Commissioner,
Social Security Administration

DEFENDANT

ORDER AFFIRMING COMMISSIONER
Plaintiff Shelia Estes Andrews2 sought judicial review of the denial of her
application for disability insurance benefits. Ms. Andrews alleged that she became
disabled on May 2, 2006, based on her arthritis, diabetes mellitus, and depression. SSA
record at 13, 184, 234.
Ms. Andrews graduated from high school and completed some college courses.
Id. at 43, 239. She worked as a care giver for disabled children and adults until May,
2006. Id. at 44, 218, 235, 351. She says that she stopped working when her body gave
out. Id. at 47. She lived with her husband and five adopted children, four of them with
special needs. Id. at 38-39.

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. She is therefore substituted as the named Defendant for Michael J.
Astrue, pursuant to Fed.R.Civ.P. 25(d).
2

Ms. Andrews is sometimes referred to in the SSA record as Shelia Annette Estes,
and Shelia Annette Easley. SSA Record at pp. 10-27, 32, 34, 74-83, 153.
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The Commissioner’s Decision
An administrative law judge (“ALJ”) denied Ms. Andrews’s application for
benefits on February 6, 2009. The Appeals Council remanded the case for reevaluation of
Ms. Andrews’s alleged mental impairments. Id. at 71-83, 87-88. On remand, after
holding a second hearing and reconsidering Ms. Andrews’s application, the
Commissioner’s ALJ determined that Ms. Andrews had severe impairments– bilateral
carpal tunnel syndrome; diabetes mellitus II with neuropathy; psoriatic arthritis;
depression; and anxiety. The ALJ also found, however, that Ms. Andrews had the
residual functional capacity (“RFC”) to perform a reduced range of light work. Id. at 1525. Because the vocational expert testified that there were jobs available that a person
with Ms. Andrews’s RFC could perform,3 the ALJ concluded that she was not disabled
under the Social Security Act and denied the application. Id. at 25-27.
After the Commissioner’s Appeals Council denied Ms. Andrews’s request for
review, the second ALJ’s decision became a final decision for judicial review. Id. at 1-6.
Ms. Andrews filed this case to challenge the ALJ’s decision. (Docket entry #2) In

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The ALJ testified that a person with Ms. Andrews’s RFC could perform the jobs
of distributing clerk, and routing clerk. Id. at 26. In addition, the vocational expert
testified that at the sedentary level, a person with Ms. Andrews’s RFC could perform the
jobs of grading clerk, and telephone information clerk. Id. at 27.
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reviewing the decision, the court must determine whether substantial evidence supported
the decision and whether the ALJ made a legal error.4
Credibility
Ms. Andrews complains about the evaluation of her credibility. (#11 at pp. 13-16)
She alleged that disabling pain prevented her from working and maintains that her
diagnoses of fibromyalgia supports her allegation. (#11 at p. 15)
An ALJ has a duty “to assess the credibility of the claimant and other witnesses.”
Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). A reviewing court “will defer to an
ALJ’s credibility finding as long as the ALJ explicitly discredits a claimant’s testimony
and gives a good reason for doing so.” Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir.
2010) (citation omitted).
To evaluate Ms. Andrews’s credibility, the ALJ followed the required two-step
process and considered the required factors.5 SSA record at pp. 18-25; see Policy
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See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of
benefits is limited to whether the decision is ‘supported by substantial evidence in the
record as a whole’”); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold
the Commissioner’s decision to deny an applicant disability benefits if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.”).
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In considering the credibility a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant's prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant's daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
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Interpretation Ruling Titles II & XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements, SSR 96-7p (July 2, 1996). Thus,
the question before the court is whether substantial evidence supports the ALJ’s
credibility evaluation.
The ALJ may discount a claimant’s complaints of pain if they are inconsistent with
the evidence as a whole. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001);
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996) (“An ALJ may discount a
claimant’s subjective complaints of pain only if there are inconsistencies in the record as
a whole.”). Here, the ALJ determined that the medical findings were inconsistent with
disabling pain. SSA record at p. 21-22. Substantial evidence supports that determination.
Here, the Plaintiff alleged disability due to arthritis beginning May 2, 2006, and
remained eligible for benefits until December 31, 2009. Id. at 15, 113. During the
relevant time period, Ms. Andrews received minimal on-going treatment for her physical
complaints.
When Ms. Andrews applied for disability, the interviewer noted that Ms. Andrews
had no problems sitting, standing, walking, using her hands, understanding, or
concentrating. Id. at 231. Almost three months later, on July 31, 2006, Ms. Andrews was
seen by her rheumatologist, Leslie McCasland, M.D., after a nine month absence from

aggravating factors; (d) dosage, effectiveness and side effects of medication; and (e)
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
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treatment, complaining of arthritis stiffness. Id. at 611. Ms. Andrews stated she was not
depressed or anxious and did not complain of problems with fatigue or tingling in her
extremities. Dr. McCasland noted a “trace” amount of tenderness in Ms. Andrews’s
fingers with a “little bit” of swelling but no swelling in her knees or ankles. Id. at 612.
Ms. Andrews did not return to the rheumatologist until nine months later. She was
out of most of her medications. Dr. McCasland noted that Ms. Andrews did not have a
lot of obvious swelling but had “trace” swelling in her fingers and a slight decrease in her
right knee flexion. Id. at 524-25. Dr. McCasland gave Ms. Andrews an injection in her
right knee. Id. at 524-25. When Ms. Andrews returned to Dr. McCasland in June, 2007,
her knee was doing well.
By September, 2007, Dr. McCasland took Ms. Andrews off her medications
because she was pregnant. Id. at 521-22. During this time, Ms. Andrews was noted to
have no swelling, tenderness, and/or edema in her extremities, and no difficulty walking
or problems with her activities of daily living. Id. at 534-35, 541, 585. In January, 2008,
after Ms. Andrews suffered a miscarriage, Rick Tate, M.D. prescribed medication for
depression and anxiety and suggested that she exercise regularly. Id. 708-09.
In September, 2008, after a one-year absence of treatment, Ms. Andrews returned
to her rheumatologist complaining of joint pain. Dr. McCasland noted that Ms. Andrews
appeared to be in “no apparent distress.” Id. at 617. She noted “trace” tenderness and
swelling in her hands, but Ms. Andrews could make a good fist. Id. at 618. She had

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tenderness in her knees, but she had no swelling. She also complained of hip pain, but
her hips moved normally. Id. Dr. McCasland continued conservative treatment with
medication. Id. In October, 2008, Dr. McCasland again noted that she was in no
apparent distress but prescribed Humira for the joint pain. Id. at 657.
When Ms. Andrews returned to the rheumatologist in July, 2009, she had some
tenderness in the left hand and lower back. Dr. McCasland’s impression was psoriatic
arthritis and fibromyalgia. Id. at 648-49. But when Ms. Andrews returned in November,
she was doing really well on the Humira. She was not stiff and had not had much joint
pain. When she did have joint pain, she took Aleve. Dr. McCasland’s impression was
psoriatic arthritis.
With the exception of carpal tunnel syndrome in her right hand, for which Ms.
Andrews had surgery, her symptoms were treated on a conservative basis. Ms. Andrews
had a history of non-compliance with her prescribed medications. See Guilliams v.
Barnhart, 393 F.3d 798, 802 (8th Cir.2005) (failure to follow a recommended course of
treatment weighs against a claimant's credibility). She had never received any long-term
mental health treatment, and none of Ms. Andrews’s physicians ever advised her that she
should limit her activity.
Also contrary to her complaints of disabling pain was Ms. Andrews’s activities of
daily living. She was able to maintain a home with five children, four of whom were at-

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risk and special needs children.6 SSA record at 243. In her December 3, 2006 function
report, she reported that she was able to prepare meals, assist with dressing and bathing
her children, and assist with their special care needs. She also reported being able to care
for her own personal needs, do laundry, clean, go to church, pay bills, and shop. Id. at
243-47. At the hearing, Ms. Andrews testified that she was able to diaper her children,
make breakfast, give her kids their medications, and feed them with their feeding tubes.
Id. at 41, 50-51.
Ms. Andrews also takes issue with the following statement in the ALJ’s opinion:
“The claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” Id. at p. 29. (#11 at p. 14) Ms. Andrews argues that the
ALJ erred by coming up with his RFC assessment first, then rejecting all of her testimony
that did not comport with the RFC. She argues that this reverses how the ALJ should
consider a claimant’s credibility.
Ms. Andrews’s argument finds some support in 20 C.F.R. § 416.945(a)(3), which
states an ALJ is to consider a claimant’s own descriptions and observations of limitations
in assessing the claimant’s RFC (suggesting the consideration should occur before RFC is
determined). See also Carlson v. Astrue, 682 F.Supp2d 1156, 1167 (D. Or. 2010). (#12

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Ms. Andrews adopted one of the special needs children, a seven-year-old with
cerebral palsy after her alleged disability onset date. Id. at 38, 40, 47, 49.
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at p. 17). But this Court does not interpret the ALJ’s statement to mean that he was
relying on his own RFC determination in order to find Ms. Andrews not credible.
Instead, the ALJ complied with the general rule in 20 C.F.R. § 404.1529. He assessed
Ms. Andrews’s statements concerning her symptoms and included in his RFC assessment
those statements he found credible and excluded those he did not find credible. See
Curtis v. Astrue, No. 11-6054-CV-SJ-ODS, 2012 WL 395526 at *1 (W.D. Mo. Feb. 6,
2012)(quoting Hodgson v. Astrue, No. 3:10–cv–6261–ST, 2011 WL 4852307, at *6,
(D.Or. Sept. 14, 2011))(rejecting a similar argument).
The ALJ’s credibility determination is supported by substantial evidence.
Residual Functional Capacity
The ALJ found that Ms. Andrews could perform light work7 with a sit/stand
option, without constant reaching or grasping, and limited to simple work with concrete
instructions and only superficial contact with the public, co-workers, or supervisors. SSA
record at 17. Ms. Andrews complains that the ALJ erred by finding she could perform
any kind of work. (#11 at pp. 11-12)

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“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567. It also
involves a good deal of walking or standing, or sitting most of the time with some
pushing and pulling of arm or leg controls. Id. To be considered capable of performing a
full range of light work, a person must have the ability to do substantially all of these
activities. Id.
8

The ALJ must consider all of the evidence in the record when determining RFC,
including medical records, observations of treating physicians and others, and the
claimant’s own description of her limitations. Stormo v. Barnhart, 377 F.3d 801, 807
(8th Cir. 2004). If, in the light of all the evidence, “the impairments are not severe
enough to limit significantly the claimant’s ability to perform most jobs, by definition the
impairment does not prevent the claimant from engaging in any substantial gainful
activity.” Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287 (1987).
Ms. Andrews bases her argument that she could not perform any work on her
subjective complaints of pain and her diagnoses of diabetes with neuropathy and
fibromyalgia. As set forth above, there is substantial evidence to support the ALJ’s
credibility determination. Further, Ms. Andrews has not provided any support for her
claim that her diagnoses of diabetes with neuropathy caused her functional limitations
beyond those set forth in the ALJ’s RFC determination.
A diagnosis of fibromyalgia alone does not establish a disabling impairment. See
Perkins v. Astrue, 648 F.3d 892, 899-900 (8th Cir. 2011). Here, the ALJ considered Ms.
Andrews’s diagnosis of fibromyalgia along with her other impairments when determining
her RFC. SSA record at 20. Following the diagnosis of fibromyalgia, Dr. McCasland
noted that Ms. Andrews was doing well on her prescribed medication, was not stiff, and
did not have a lot of joint pain. Dr. McCasland removed the fibromyalgia diagnosis.

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State agency physicians performed physical RFC assessments and concluded that,
in spite of her impairments, Ms. Andrews could perform light work. Id. at 433-40.
Substantial evidence supports the ALJ’s conclusion that Ms. Andrews could perform a
limited range of light work
Hypothetical
Finally, Ms. Andrews complains that the ALJ did not ask the Vocational Expert
(“VE”) a proper hypothetical because the hypothetical did not include all of her
impairments. (#11 at p. 17) Having concluded above, however, that the ALJ did not err
in assessing Ms. Andrews’s credibility or RFC, the ALJ’s hypothetical included all of the
limitations supported by the record. Accordingly, the VE’s testimony was sufficient
evidence to support the ALJ’s conclusion at step five that Ms. Andrews was not disabled.
Conclusion
Substantial evidence supports the ALJ’s decision denying Ms. Andrews’s
application. The ALJ made no legal error. For these reasons, Ms. Andrews’s request for
relief (docket entry # 2) is DENIED, and the decision denying the application for benefits
is AFFIRMED.
DATED this 23rd day of October, 2013.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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