Box v. Social Security Administration

Filing 13

ORDER AFFIRMING THE COMMISSIONER. The ALJ made no legal error and for these reasons the Court denies Box's request for relief and affirms the Commissioner's decision. Signed by Magistrate Judge J. Thomas Ray on 7/17/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
Sheri Box

Plaintiff

v.

CASE NO. 3:13CV00074 JTR

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Sheri Box seeks judicial review of the denial of her application for disability
insurance benefits (DIB). Box last worked in 2008 as a cleaning technician.1 Box
applied for DIB on September 30, 2010, with an alleged onset date of April 1, 2009.2
Box’s date last insured (DLI) is December 31, 2013.3 Box bases disability on blood
clot in leg, stent in groin area and filter in chest.4
The Commissioner’s decision. The Commissioner’s ALJ determined that Box
has not engaged in substantial gainful activity since the alleged onset date.5 Box has
severe impairments - peripheral vascular disease and obesity.6 None of Box’s severe

1

SSA record at p. 136.

2

Id. at p. 96.

3

Id. at p. 110.

4

Id. at p. 115.

5

Id. at p. 13.

6

Id.

impairments meet the listings,7 and Box can perform light work except that she is
limited to occasional stooping, crouching, crawling and kneeling; is unable to climb
ropes, ladders or scaffolds; cannot perform jobs requiring the use of foot controls or
the left lower extremity; and cannot be exposed to hazards.8 The ALJ held that Box
cannot perform any past relevant work,9 but can perform the positions of assembler
or assembler/small products, positions identified by the vocational expert (VE) as
available in the state, regional and national economies.10 Box’s application was
denied.11
After the Commissioner’s Appeals Council denied a request for review, the
ALJ’s decision became a final decision for judicial review.12 Box filed this case to
challenge the decision. In reviewing the decision, the Court must determine whether

7

Id. at p. 14.

8

Id.

9

Id. at p. 17.

10

Id. at p. 18.

11

Id.

12

See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the
Social Security Act precludes general federal subject matter jurisdiction until
administrative remedies have been exhausted” and explaining that the appeal
procedure permits claimants to appeal only final decisions).
2

substantial evidence supports the decision and whether the ALJ made a legal error.13
Box’s allegations. Box maintains that the decision of the ALJ is not supported
by substantial evidence because (1) the ALJ’s RFC determination and hypothetical
presented to the VE are not supported by the medical evidence; and (2) the ALJ’s
credibility analysis is flawed.
Substantial evidence is “less than a preponderance but . . . enough that a
reasonable mind would find it adequate to support the conclusion.”14 For substantial
evidence to exist in this case, a reasonable mind must accept the evidence as adequate
to support the ALJ’s denial of benefits.15
RFC determination and hypothetical. Box maintains that the ALJ’s RFC
determination and hypothetical presented to the VE are not supported by substantial
evidence. The ALJ held that Box has the RFC to perform light work, except that she
is limited to occasional stooping, crouching, crawling and kneeling; is unable to climb
13

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); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny any
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.”).
14

Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and
citations omitted).
15

Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990).
3

ropes, ladders or scaffolds; cannot perform jobs requiring the use of foot controls or
the left lower extremity; and cannot be exposed to hazards.16 During the hearing, the
ALJ presented the following hypothetical to the VE:
In this first model, I will ask you to assume we have a person the same
age, education and work experience as what we find in Ms. Box’s case.
Let me ask you to assume that person is capable of performing light
exertional work as it’s defined in the Dictionary of Occupational Titles
with these additional limitations that I’m going to outline for you. I’d
like you to consider work that, in your experience, permits the worker to
sit or stand at will. I’d like you to consider work that doesn’t require foot
controls for the left lower extremity. I’d like the work not to require
climbing of ladders, ropes or scaffolds for the worker, with no more than
occasional performance of all the remaining postural functions. And,
lastly, I’d like the work not to require exposure to hazards.17
As an initial matter, Box asserts that the ALJ failed to include the sit/stand
option, as assessed by a state consulting physician, in the RFC and hypothetical. As
established above, the sit/stand option was included in the hypothetical. It is, however,
missing from the RFC. Because the ALJ included the sit/stand option in the
hypothetical, the failure to include it in the RFC is harmless error. Even if the sit/stand
option was included in the RFC, it would not change the outcome of the final
disability determination. It appears that this error is “an arguable deficiency in

16

SSA record at p. 14.

17

Id. at p. 39.
4

opinion-writing technique” that “had no bearing on the outcome.”18
The RFC, with the intended inclusion of the sit/stand option, and the
hypothetical presented to the VE are supported by substantial evidence. The Residual
Functional Capacity Assessment19 completed by a state consulting physician after
reviewing Box’s records sets limitations almost identical to those contained in the
RFC and hypothetical. The state physician determined that Box is capable of
performing light work after finding that Box can stand and/or walk about 6 hours in
an 8 hour workday, and can sit for the same amount of time if allowed the option to
alternate sitting and standing.20 The ALJ places environmental limitations identical to
those assessed by the state physician. The ALJ’s postural limitations are even more
restrictive than those assessed by the state physician.
In a general physical examination, a state examining physician determined that
Box suffers from pain and edema in her left leg and swelling in her left knee.21 The
physician limits Box’s ambulation.22 In the same report, however, the physician notes

18

Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (internal citations omitted).

19

SSA record at pp. 349-56.

20

Id. at p. 350.

21

Id. at pp. 334-39.

22

Id. at p. 338.
5

that Box has no intermittent claudication.23,

24

Additionally, Box can stand/walk

without assistive devices.25 In a review of Box’s medical records, another state
consulting physician went so far as to determine that Box’s impairments are nonsevere.26
The medical records also support the ALJ’s RFC determination and
hypothetical. Box’s blood clot was discovered in April 2009 after admission to the
hospital with extreme pain in her left leg.27 The leg was swollen, pain was radiating
to her back, and she dragged the leg as she walked.28 Following discovery of the clot,
Box underwent multiple types of treatment, including the placement of a stent in her
groin and a filter in her heart.29 She still has both.

23

Id. at p. 335.

24

Intermittent claudication is defined as “a pain, cramping, or weakness in the
legs (usually the calf muscle of one or both lower limbs, although it can sometimes
occur in the arms), especially when exercising such as walking or climbing stairs. The
pain, which occurs because of reduced blood flow through the limbs, is intermittent
and goes away when the person rests. It is . . . a symptom of peripheral artery disease.”
Liz Swain, 3 The Gale Encyclopedia of Med. 2385 (4th ed.).
25

SSA record at p. 337.

26

Id. at p. 344.

27

Id. at pp. 177-78.

28

Id. at p. 163.

29

Id. at pp. 185, 189 & 286.
6

The notes from the University of Arkansas for Medical Sciences (UAMS) and
Box’s family treatment clinic establish that Box has experienced great improvement
following and during treatment. Upon discharge from UAMS, it was noted that Box’s
left lower extremity edema was significantly improved with minimal pain.30 Box’s
family treatment clinic noted that Box was feeling much better and the swelling was
dramatically decreased.31 In September 2009, Box returned to UAMS.32 The notes
from that visit also indicate improvement, stating that Box “ambulates without
difficult, [has] [a] steady gait, adequate joint function, [and] denies pain.”33 Further,
there is no swelling or discoloration, no edema, no joint stiffness or pain, and Box has
the normal full range of motion in all joints.34 Box’s leg “looks quite good” and is
symmetric with her right leg.35 The physician notes that the biggest problem is some
skin irritation from the compression stocking, and recommends Box switch to a
different brand.36
30

Id. at p. 304.

31

Id. at pp. 161 & 330.

32

Id. at p. 307.

33

Id.

34

Id. at pp. 308-09.

35

Id. at p. 310.

36

Id.
7

One of the last notes contained in the record is from July 13, 2011.37 In the note
Box complains of back and leg pain, but states that she has been picking up a twoyear-old and doing housework, and that these activities may have strained her back.38
The note indicates that Box suffers from chronic left leg edema, but that it has
improved from years past.39 On that day Box has mild edema in her left lower
extremity, but is therapeutic on Coumadin, an anticoagulant Box takes daily.40 The
physician suspects that the back pain is due to muscle strain from housework, and
recommends a heating pad, Tylenol and gentle stretching.41 The treatment for Box’s
blood clot remains unchanged.42
The medical records establish that Box has basically been on the same
prescription treatment plan since the clot was discovered. Although initially prescribed
Lovenox injections and Coumadin tablets, Box’s treatment plan was reduced to a daily
Coumadin regimen only.43 The Coumadin treatment will be lifelong, but the dosage
37

Id. at p. 367.

38

Id.

39

Id.

40

Id. at pp. 369-70.

41

Id. at p. 370.

42

Id.

43

Id. at p. 323.
8

has been decreased.44
It is significant to note that although Box has been told by physicians at her
family treatment clinic that she must have her international normalized ratio (INR)45
checked monthly, she has not consistently reported for testing. It appears that in 2010,
she missed five months of testing. In 2011, she missed eight months of testing. Box
had no testing done in 2012. A January 19, 2012, letter to Box from the UAMS
Family Medical Center in Jonesboro states that they have had difficulty getting in
touch with Box and that she needs to contact them.46 Indeed, there are no medical
records from the latter part of 2011 or from the entirety of 2012. Inconsistent medical
treatment weighs against Box’s allegations of disabling pain and provides additional
support for the ALJ’s RFC determination and hypothetical. Substantial evidence
supports the ALJ’s RFC determination and hypothetical.
Credibility. Box further asserts that the ALJ erred in the credibility
determination because the reasons given for discrediting Box are not supported by the
law or the record. After reviewing the medical record, the ALJ determined that Box
was not credible to the extent that her statements were inconsistent with the residual
44

Id. at p. 322.

45

INR is a measure of the time required for blood to clot. 3-I Attorneys’
Dictionary of Med. I-60992.
46

SSA record at p. 375.
9

functional capacity assessment. For support the ALJ gave the following reasons: (1)
no healthcare provider ever restricted Box from performing all work-related activities;
(2) Box’s impairments are controlled with conservative medical treatment; and (3)
Box performs many activities of daily living without difficulty.
An ALJ must evaluate the claimant’s credibility because subjective complaints
play a role in determining the claimant’s ability to work.47 To evaluate Box’s
credibility, the ALJ followed the required two-step process and considered the
required factors,48 so the dispositive question is whether substantial evidence supports
the credibility evaluation. The ALJ’s determination that Box’s subjective complaints
of pain and limitations were not credible to the extent that they conflict with the
assigned RFC is supported by substantial evidence.
The ALJ is correct that no physician restricted Box from performing all workrelated activities. As Box points out, one state examining physician did limit Box’s
ambulation.49 The same physician, however, did not restrict Box from performing all
work-related activities. Further, another state consulting physician determined that

47

Ellis v. Barnhart, 392 F.3d 988, 995-96 (8th Cir. 2005).

48

See SSR 96-7p, Policy Interpretation Ruling Titles II & XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an Individual’s
Statements.
49

SSA record at p. 338.
10

Box could perform light work with specific restrictions.50
Substantial evidence supports the ALJ’s determination that Box’s impairments
are being controlled by her current treatment plan. Indeed, Box’s treatment plan has
remained unchanged since 2009. She continues to take Coumadin daily and wears
support stockings. The last comprehensive note from her family practice clinic states
that Box is “therapeutic on Coumadin.”51 Further, as established above, Box’s visits
to her family treatment clinic for monthly testing became infrequent. If the treatment
was not addressing her impairments, and Box continued to be in disabling pain,
common sense dictates that she would have seen her doctor more regularly and sought
a different treatment.52
In the decision, the ALJ determined that Box performs many activities of daily
living without difficulty; specifically, household chores, preparing meals, laundry,
shopping and caring for three small children.53 Box testified that she is able to care for

50

Id. at p. 350.

51

Id. at p. 370.

52

See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (failing to seek
medical assistance for alleged physical and mental impairments contradicted
claimant’s allegations of disabling conditions and supported unfavorable decision).
53

SSA record at p. 16.
11

her children.54 She helps with meals, laundry and dishes “when [she] can.”55 Further,
she is able to shop, but must “sit down a lot and rest.”56 These statements alone do not
establish that Box can perform these daily activities without difficulty. Other
evidence, however, supports the ALJ’s finding. Multiple records indicate that Box is
able to walk and is not in pain.57 Further, Box described to a treating physician how
she picks up her two-year-old and performs household chores like cleaning the kitchen
and bathroom.58
In addition to the reasons given by the ALJ for finding Box’s allegations of
disabling pain not credible, there is extensive medical record evidence - discussed
above - establishing that Box’s impairments are improving. This weighs against Box’s
allegations. The ALJ’s credibility finding is supported by substantial evidence.
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made
no legal error. For these reasons, the court DENIES Box’s request for relief (docket
entry # 2) and AFFIRMS the Commissioner’s decision.

54

Id. at p. 31.

55

Id. at p. 32.

56

Id.

57

Id. at pp. 307, 337 & 350.

58

Id. at p. 367.
12

It is so ordered this 17th day of July, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

13