Evans v. Social Security Administration

Filing 13

ORDER AFFIRMING THE COMMISSIONER. The Court denies Evans's request for relief, 2 , and affirms the Commissioner's decision. Signed by Magistrate Judge J. Thomas Ray on 2/6/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Kathi Sue Evans
v.

Plaintiff
CASE NO. 3:14CV00019 JTR

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Kathi Sue Evans seeks judicial review of the denial of her application for
disability insurance benefits (DIB). This is Evans’s second application for disability.
Her previous application was denied on July 13, 2010.1 Evans last worked in
February 2009 as a customer service representative.2 Evans applied for DIB on April
6, 2011, with an alleged onset date of March 28, 2009.3 Evans’s date last insured
(DLI) is December 31, 2013.4 Evans bases disability on fibromyalgia, celiac disease,
asthma, osteoarthritis, manic depression and lupus.5
The Commissioner’s decision. The Commissioner’s ALJ determined that

1

SSA record at p. 143.

2

Id. at p. 148.

3

Id. at p. 129.

4

Id. at p. 143.

5

Id. at p. 147.

Evans has not engaged in substantial gainful activity since the alleged onset date.6
Evans has severe impairments - fibromyalgia; celiac disease; a history of juvenile
rheumatoid arthritis; depressive disorder, not otherwise specified; and pain disorder
associated with both medical and psychological factors.7 None of Evans’s severe
impairments meet the Listings,8 and Evans can perform sedentary work except that
she needs to have the option to sit and stand at will with only occasional use of her
hands to grasp or finger, and she is limited to simple, routine, repetitive tasks with
only occasional interaction with co-workers and the general public.9 The ALJ held
that Evans cannot perform any past relevant work,10 but can perform the positions of
surveillance monitor, call-out operator and order clerk, positions identified by the
vocational expert (VE) as available in the state and national economies.11 Evans’s
application was denied.12

6

Id. at p. 12.

7

Id.

8

Id. at p. 13.

9

Id. at p. 14.

10

Id. at p. 21.

11

Id. at pp. 22-23.

12

Id. at p. 23.
2

After the Commissioner’s Appeals Council denied a request for review, the
ALJ’s decision became a final decision for judicial review.13 Evans filed this case to
challenge the decision. In reviewing the decision, the Court must determine whether
substantial evidence supports the decision and whether the ALJ made a legal error.14
Evans’s allegations. Evans maintains that the ALJ’s denial of disability
benefits should be reversed because (1) the credibility determination is not supported
by substantial evidence; and (2) the VE’s testimony conflicts with the Dictionary of
Occupational Titles (DOT).
Substantial evidence is “less than a preponderance but . . . enough that a
reasonable mind would find it adequate to support the conclusion.”15 For substantial
evidence to exist in this case, a reasonable mind must accept the evidence as adequate

13

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).
14

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.”).
15

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

to support the ALJ’s denial of benefits.16
Credibility. Evans asserts that the ALJ erred in the credibility determination
with respect to her allegations of disabling pain and symptoms related to
fibromyalgia, depression and celiac disease. After reviewing the medical record, the
ALJ determined that Evans was not credible to the extent that her statements were
inconsistent with the RFC.
An ALJ must evaluate the claimant’s credibility because subjective complaints
play a role in determining the claimant’s ability to work.17 To evaluate Evans’s
credibility, the ALJ followed the required two-step process and considered the
required factors,18 so the dispositive question is whether substantial evidence supports
the credibility evaluation. The ALJ’s determination that Evans’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.
Evans’s allegations of disabling pain and symptoms associated with
fibromyalgia are inconsistent with the medical records. Evans has reported symptoms

16

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

17

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

18

See SSR 96-7p, Policy Interpretation Ruling Titles II & XVI: Evaluation of
Symptoms in Disability Claims: Assessing the Credibility of an Individual’s
Statements.
4

associated with fibromyalgia since July 2009.19 Fibromyalgia is the “inflammation of
the fibrous or connective tissue (muscles, joints, ligaments, and tendons) of the body.
It is characterized by muscle pain, fatigue, and multiple tender points on the body.”20
Medical standards provide for a diagnosis of fibromyalgia if a patient has
“widespread pain in combination with tenderness in at least 1 of the 18 sites known
as trigger points.”21 In April 2010, a consulting physician noted that Evans exhibited
tenderness in all 18 trigger points and assessed fibromyalgia.22
The records establish that Evans was not prescribed medication for
fibromyalgia until approximately nine months following her initial complaints of
pain.23 This is inconsistent will allegations of disabling pain. Further, it appears that
the medications prescribed for the treatment of fibromyalgia remained basically
unchanged throughout the medical records. Evans was prescribed Savella and Lyrica
in April 2010.24 Evans testified at the hearing that she is still prescribed Savella and

19

SSA record at p. 240.

20

Paula Ford-Martin, Michele R. Webb & Laura Jean Cataldo, 3 The Gale
Encyclopedia of Med. 1728 (4th ed.).
21

Id. at p. 1729.

22

SSA record at p. 262.

23

Id.

24

Id.
5

Lyrica.25 The only real change in her medications has been the addition of a pain
reliever, which she has also been prescribed since 2010.26 The consistency in the
medications prescribed for Evans’s fibromyalgia supports the ALJ’s credibility
determination because it suggests that the prescription medications provide Evans
with some relief. If they did not, a different course in treatment would be necessary.
The observations and notes contained in the medical records do not support
allegations of disabling pain. Multiple notes indicate that Evans exhibited a full range
of motion, a normal gait and/or was in no acute/apparent distress.27 Importantly,
during two appointments in which Evans complained of pain, upon physical
examination her treating physician found no joint swelling, normal movements of all
extremities, and/or normal muscle strength and tone.28 In June 2011 and August 2011,
Evans’s treating physician noted stable myalgia,29 stable arthralgia,30 stable diffuse

25

Id. at p. 53.

26

Id. at p. 256.

27

Id. at pp. 232, 235, 238, 242, 247, 249, 252, 254, 257, 262, 264, 266, 268,
282, 342, 346, 350, 354-355, 367 & 377.
28

Id. at pp. 367 & 377.

29

Myalgia is defined as “muscular pain.” Stedman’s Med. Dictionary 581020
(27 ed.).
th

30

Arthralgia is defined as “pain in a joint.” Id. at 75390.
6

pain and stable diffuse tenderness.31 In August 2011, it was noted that Evans was
“doing well with no complaints.”32
Providing further support for the credibility determination is the fact that there
are large periods of time in the record during which Evans sought no medical care for
the allegedly disabling fibromyalgia - or for any other impairment. Following an
October 2009 appointment, Evans went approximately six months without medical
care.33 In February 2012, Evans was seen by her treating physician for knee pain.34
Subsequently, however, Evans went over a year without medical care. This is
inconsistent with allegations of disabling pain, and supports the ALJ’s credibility
determination.35

31

SSA record at pp. 348 & 359.

32

Id. at p. 348.

33

Id. at p. 263.

34

Id. at p. 375.

35

See Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (“An ALJ may
discount a claimant’s subjective complaints of pain based on the claimant’s failure
to pursue regular medical treatment.”); 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); Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir.
1996) (complaints of disabling pain and functional limitations are inconsistent with
the failure to take prescription pain medication or to seek regular medical treatment
for symptoms).
7

In April 2011, a Physical Residual Functional Capacity Assessment was
completed by an SSA physician.36 After reviewing the medical records, the physician
assigned no non-exertional limitations and determined that Evans is capable of
performing light work.37 This assessment was affirmed by a second state physician
in June 2011, and supports the ALJ’s credibility determination.38
Evans’s abilities with respect to activities of daily living also weigh against her
allegations of disabling pain and symptoms. In the Function Report, Evans stated that
she wakes up at 6:00 a.m. and gets her children ready for school.39 She lets the dog
out and tries to clean the house.40 In the afternoon and evening she helps her children
with homework, cooks dinner with her daughter, and puts the children to bed.41 She
has no problems with personal care, and is able to drive and leave her house alone.42
Evans is further able to grocery shop once a week for a few hours or longer.43 In an
36

SSA record at p. 289.

37

Id. at pp. 291-293 & 296.

38

Id. at p. 337.

39

Id. at p. 171.

40

Id.

41

Id. at pp. 51 & 171.

42

Id. at pp. 172 & 174.

43

Id. at p. 174.
8

April 2011 treatment note, Evans’s treating physician indicated that Evans is
“[g]eneral[ly] able to do usual activities.”44
With respect to Evans’s allegations of disabling mental impairments, the
medical records again fail to provide support. It appears that Evans began treatment
for depression in 2006.45 In 2009, after taking prescription medications for depression
and anxiety, Evans reported that her mood and anxiety symptoms significantly
improved.46 Although Evans later complained of side effects from the antidepressant,47 in early 2010 she was prescribed a different anti-depressant amitriptyline.48 Amitriptyline was subsequently supplemented with two additional
anti-depressants - Abilify and Cymbalta. Abilify was first prescribed in late 2010 and
Cymbalta subsequent to the last available medical record.49, 50 Evans remains on all

44

Id. at p. 247.

45

Id. at p. 240.

46

Id. at p. 231.

47

Id. at p. 234.

48

Id. at p. 262.

49

Id. at p. 252

50

It is unclear whether Cymbalta was prescribed for depression or fibromyalgia.
It is used in the treatment of both.
9

three medications.51 This consistency in prescribed medications weighs against
Evans’s allegations. It suggests that the prescription medications are effective.
Indeed, although in some notes Evans is observed or reports to be depressed,52
other indications suggest mental stability. There are multiple treatment notes in which
Evans is observed to be alert and oriented to person, place and time.53 An April 2010
progress note indicates that Evans exhibited normal speech rate and rhythm, an
appropriate affect, normal judgment/insight and a logical and goal directed thought
process.54 It is important to note that following the April 2010 appointment, Evans no
longer sought treatment with a mental health professional. It appears that all of her
mental health needs were addressed by her treating physician. Treating physician
notes from late 2010 and early 2011 observe Evans to be “pleasant.” 55 In April 2011,
Evans’s treating physician stated that Evans’s depression was controlled with her
medication regimen.56 Subsequent notes indicate that Evans exhibited an appropriate

51

SSA record at p. 53.

52

Id. at pp. 234, 237, 240, 359 & 364.

53

Id. at pp. 238, 246, 251, 256, 262, 264, 266, 268, 270, 282, 342, 346, 354, 361

& 377.
54

Id. at p. 238.

55

Id. at pp. 247, 249 & 257.

56

Id. at p. 283.
10

mood and affect and intact judgment and insight.57 Importantly, subsequent to June
2011, Evans made no further complaints of depression to her treating physicians.
Medical assessments provide additional support for the credibility
determination. In a May 2011, Mental Diagnostic Evaluation, a state physician
determined that Evans can communicate and interact in a socially adequate manner,
communicate in an intelligible and effective manner, cope with the typical demands
of basic work-like tasks, attend and sustain concentration on basic tasks, sustain
persistence in completing tasks, and complete work-like tasks within an acceptable
timeframe unless the tasks aggravate her pain issues.58 A Mental Residual Functional
Capacity Assessment was also completed in May 2011.59 The physician determined
that Evans is moderately limited in seven of twenty mental capacities.60 In the
remaining thirteen, Evans was not significantly limited.61 The physician concluded
that Evans is capable of simple, routine, repetitive tasks and “able to perform work
where interpersonal contact is incidental to work performed, e.g., assembly work;

57

Id. at pp. 282, 361 & 367.

58

Id. at pp. 303-304.

59

Id. at p. 325.

60

Id. at p. 327.

61

Id.
11

complexity of tasks is learned and performed by rote, few variables, little judgment;
supervision required is simple, direct and concrete (unskilled).”62 This assessment
was affirmed by a second state physician in June 2011.63
As stated above, the episodic treatment sought by Evans also weighs against
her allegations. Logic dictates that if Evans was suffering from disabling mental
impairments, she would have sought treatment more frequently. As with
fibromyalgia, Evans sought no treatment for her allegedly disabling mental health
impairments for periods of six months to a year. The reported daily activities also
support the ALJ’s credibility determination with respect to Evans’s mental
impairments.
Although Evans maintains that the symptoms of her celiac disease are
disabling, these allegations also conflict with the medical records. In July 2009,
Evans complained to her treating physician of stomach pain, diarrhea and
constipation.64 Apart from complaints of indigestion,65 however, there are few
subsequent notes specifically addressing gastrointestinal problems until Evans was

62

Id.

63

Id. at p. 338.

64

Id. at p. 269.

65

Id. at pp. 246 & 251.
12

referred to an internist in 2011.66 The internist noted that Evans had a ten year history
of diarrhea and constipation.67 Evans was prescribed an over-the-counter probiotic
and placed on a gluten-free diet.68 In subsequent notes, Evans was “doing well with
no complaints.”69 Evans indicated that she experienced “dramatic improvement” on
the gluten-free diet.70 She felt much better and was experiencing no abdominal pain,
vomiting, constipation, diarrhea or heartburn.71 The final note addressing Evans’s
gastrointestinal problems states that Evans was asymptomatic and “[m]uch improved
with dietary changes and Nexium.”72 The physical assessments completed by state
physicians and cited above provide additional support for the credibility
determination.
As with the allegations with respect to the fibromyalgia and mental
impairments, Evans’s daily activities and episodic treatment weigh against allegations

66

Id. at p. 283.

67

Id. at p. 352.

68

Id. at pp. 351 & 355.

69

Id. at p. 348.

70

Id. at p. 344.

71

Id.

72

Id. at p. 375.
13

of disabling pain and symptoms related to celiac disease. There are large periods of
time in the record during which Evans sought no treatment for symptoms related to
celiac disease.
A reasonable mind would accept the evidence as adequate to support the ALJ’s
credibility determination. The credibility determination is supported by substantial
evidence.
DOT conflict. Evans argues that two of the jobs identified by the VE - call-out
operator and order clerk - require regular contact with the general public. Therefore,
the VE’s testimony conflicts with the RFC and it was error for the ALJ to hold that
Evans can perform such positions. Evans’s argument is without merit.
First and foremost, it was appropriate for the ALJ to rely on the testimony of
the VE. “An ALJ may rely on a vocational expert’s testimony as long as some of the
identified jobs satisfy the claimant’s residual functional capacity.”73 There is no
argument that one of the jobs identified by the VE - “surveillance monitor” - is a
position that satisfies the assigned RFC.
Furthermore, if any error occurred, it was harmless. “To show an error was not
harmless, [the claimant] must provide some indication that the ALJ would have

73

Grable v. Colvin, 770 F.3d 1196, 1202 (8th Cir. 2014).
14

decided differently if the error had not occurred.”74 That is, to show harmful error,
Evans must show the ALJ may have decided the matter differently without the error.
Evans cannot show the ALJ may have decided the matter differently because in
addition to the positions of call-out operator and order clerk, the ALJ determined that
Evans can perform the position of surveillance monitor, a position with 730 jobs
available in Arkansas and 79,280 available in the national economy.75 Therefore, even
absent the alleged error, the ALJ would have reached the same conclusion and denied
Evans’s DIB application.
Conclusion. Substantial evidence supports the ALJ’s decision. If any legal
error occurred, it was harmless. For these reasons, the court DENIES Evans’s request
for relief (docket entry # 2) and AFFIRMS the Commissioner’s decision.
It is so ordered this 6th day of February, 2015.

___________________________________
UNITED STATES MAGISTRATE JUDGE

74

Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2010).

75

To the extent Evans argues that the number of surveillance monitor jobs
available is not significant, the argument is unpersuasive. In Jenkins v. Bowen, 861
F.2d 1083, 1087 (8th Cir. 1988), the Court determined that 500 statewide jobs were
numerous enough to represent a significant number.
15