Robinson v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER: The finding that Plaintiff is not disabled, for purposes of the Social Security Act, is AFFIRMED, and this case is DISMISSED, WITH PREJUDICE. Signed by Magistrate Judge Beth Deere on 2/1/2008. (smb)

R o b i n s o n v. Social Security Administration

D o c . 13

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION M A R Y ROBINSON V. M I C H A E L J. ASTRUE, C o m m is s io n e r , S o c ia l Security Administration 1 No. 4:06CV01547-BD PLAINTIFF

DEFENDANT

M E M O R A N D U M OPINION AND ORDER

P la in tif f brings this action for review of a final decision of the Commissioner of th e Social Security Administration (the "Commissioner") denying her claim for disability in s u ra n c e benefits and supplemental security income benefits. For reasons which follow, th e decision of the Administrative Law Judge 2 is AFFIRMED. I. Procedural History: Plaintiff Mary Robinson filed her applications for disability insurance benefits and s u p p le m e n ta l security income benefits on May 17, 2004 (Tr. 53A-53B, 209-12), alleging d is a b ility since April 6, 2004, due to fibromyalgia/chronic fatigue syndrome and d e p re ss io n (Tr. 53A, 55, 62, 209, 222). Her application was denied initially and upon

Michael J. Astrue was sworn in as the Commissioner of Social Security on F e b ru a ry 12, 2007. He is therefore substituted for Jo Anne B. Barnhart pursuant to F ed .R .C iv. P . 25(d)(1).
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T h e Honorable Garry L. Brewer. 1

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re c o n sid e ra tio n . Plaintiff requested a hearing on September 20, 2004, and the ALJ held a h e a rin g on November 3, 2005. Ms. Robinson appeared at the hearing with her counsel. T h e ALJ issued his decision that Plaintiff was not disabled on June 27, 2006 (Tr. 8 -1 7 ), after finding that Plaintiff had the residual functional capacity to perform the full ra n g e of medium work. (Tr. 14) The ALJ concluded that Plaintiff could return to her p a st relevant work as a receptionist, which is classified as semi-skilled, requiring s e d e n ta ry exertion. (Tr. 16). The Appeals Council declined review on October 13, 2006 (T r. 3-6). Thus, the ALJ's decision became the final decision of the Commissioner. Plaintiff seeks judicial review under 42 U.S.C. § 405(g). II. B a c k gro u n d : P la in tif f was thirty-three years old at the time of the hearing. She testified that she liv e d with her husband and three children, aged five to thirteen. (Tr. 223) She had a high s c h o o l education and a one-year associate's degree in computerized accounting from a v o c a tio n a l school. (Tr. 223) She had past relevant work experience as a receptionist, c ler k /ca sh ier , factory worker, and waitress. (Tr. 224-25) Ms. Robinson was five feet, tw o inches tall at the time of the hearing and weighed approximately 200 pounds. (Tr. 224)

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III.

F in d in g s of the ALJ: T h e ALJ considered Plaintiff's impairments by way of the familiar five-step

s e q u e n tia l evaluation process.3 The first step involves a determination of whether the claim an t is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(I); 4 1 6 .9 2 0 (a )(4 )(I) (2005). If the claimant is, benefits are denied, regardless of medical c o n d itio n , age, education or work experience. Id. at §§ 404.1520(b); 416.920(b). In this c a se , the ALJ found that Ms. Robinson was not engaged in substantial gainful e m p lo ym e n t and that she had not been so engaged since the onset of her alleged d is a b ility. (Tr. 12) S te p 2 involves a determination of whether the claimant has an impairment or c o m b in a tio n of impairments which is "severe" and meets the duration requirement. Id. at § § 404.1520(a)(4)(ii); 416.920(a)(4)(ii). A "severe" impairment significantly limits a c la im a n t's ability to perform basic work activities. Id. at §§ 404.1520(c); 416.920(c). The ALJ found that Plaintiff suffered from a severe impairment, fibromyalgia. (Tr.12) He found that Plaintiff's other complaints, including depression, were not severe. (Tr. 13) Step 3 involves a determination of whether the severe impairment meets or equals a listed impairment. Id., §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If so, and the duration

Because the ALJ found that Plaintiff could return to her past relevant work at step f o u r of the five-step process, he did not need to proceed to step five in the sequential a n a lysis , i.e. whether the claimant is able to make an adjustment to other work, given c la im a n t's age, education and work experience. 3

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re q u ire m e n t is met, benefits are awarded. Id. If the claimant does not meet or equal a lis tin g , then a residual functional capacity assessment is made. Id., § 404.1520(a)(4); § 416.920(a)(4). The ALJ determined that Ms. Robinson did not meet or equal a listing a n d proceeded to make a functional capacity assessment. Step 4 involves a determination of whether the claimant has sufficient residual f u n c tio n a l capacity to perform past relevant work. Id., §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )( 4 )( iv ). If so, benefits are denied, and the analysis ends. Id. The ALJ d eterm ined that Plaintiff could return to her past work as a receptionist. (Tr. 16) Because the ALJ found that Ms. Robinson could perform her past relevant work, she was d e ter m in e d not to be disabled under the Social Security Act (the "Act"). The ALJ did f in d that Plaintiff had the residual functioning capacity to perform the full range of m e d iu m work. (Tr. 14) He found no evidence of loss of fine dexterity or the inability to s it for long periods, and concluded that Plaintiff also could perform the full range of light an d sedentary work. 4 (Tr. 14) T h e ALJ considered Plaintiff's subjective complaints of pain and fatigue, but f o u n d these complaints to be not fully credible. (Tr. 15) This conclusion was based on in c o n sis te n c ie s in the record (Tr. 15); Plaintiff's self-reported daily activities (Tr. 15, 2 0 3 ); a lack of medical evidence to support the Plaintiff's complaints of disabling pain;

Plaintiff's past relevant work as a receptionist is considered semi-skilled, s e d e n ta ry work. (Tr. 16, citing DICTIONARY OF OCCUPATIONAL TITLES (DOT) Code # 2 3 7 .3 6 7 - 0 3 8 ) 4

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la c k of prescription pain medications (Tr. 15, 58, 75, 226); the psychological report of S a m Boyd, Ph.D. (Tr.201 - 07); Plaintiff's minimal work history (Tr. 15; 222; 142); and th e opinions of state agency medical consultants (Tr. 16; 134-41). Plaintiff contends that: (1) there was no medical evidence to support the ALJ's a ss e ss m e n t that Ms. Robinson maintained the residual functional capacity to perform her p a st work as a receptionist; (2) the ALJ's credibility determination was not supported by th e record and that he failed to consider all relevant factors as set out in Polaski v. H e c kle r, 739 F.2d 1320 (8th Cir. 1984); and (3) the ALJ failed to develop the record p ro p e rly. Defendant argues that the burden was on Plaintiff to prove that she was d isab led and that the record supports the ALJ's finding that Plaintiff was able to perform h e r past work as a receptionist. IV . A n a l y s is : A. S ta n d a r d of Review

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). "If the decision of the Commissioner is supported by substantial e v id e n c e on the record as a whole," that decision must be affirmed. Harris v. Barnhart, 3 5 6 F.3d 926, 928 (8th Cir. 2004). "Substantial evidence is evidence that a reasonable m in d would find adequate to support the ALJ's conclusion." Nicola v. Astrue, 480 F.3d 8 8 5 , 886 (8th Cir. 2007). The Court "must consider the evidence which detracts from the

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C o m m is s io n e r's decision, as well as the evidence in support of the decision," but the d e c is io n cannot be reversed, "simply because some evidence supports a conclusion other th a n that of the Commissioner." Pelkey v. Barhart, 433 F3d 575, 578 (8th Cir. 2006). The ALJ is responsible for deciding fact questions, including the credibility of a c la im a n t's subjective testimony about her limitations. Gregg v. Barnhart, 354 F.3d 710, 7 1 3 (8th Cir. 2003). "If an ALJ explicitly discredits the claimant's testimony and gives g o o d reason for doing so, [the court] will normally defer to the ALJ's credibility d e te rm in a tio n ." Id. at 714; see also Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1 9 9 2 ) ("We will not disturb the decision of an ALJ who seriously considers, but for good re a s o n s explicitly discredits, a claimant's testimony of disabling pain."). Thus, this Court's review is limited. The only question for this Court is whether th e re is substantial evidence in the record as a whole to support the ALJ's conclusion that M s. Robinson is not disabled under the Act. B. M e d ic a l Evidence

P lain tiff notes that there must be "some medical evidence" to support the ALJ's d e te rm in a tio n that Plaintiff retains the functional capacity to perform her past relevant w o rk. (Plaintiff's Brief at 9) She argues that, "there is none." (Plaintiff's Brief at 10) A r e v ie w of the medical evidence in this case, however, supports the ALJ's finding that Ms. R o b in s o n does have fibromyalgia, but that the condition is not disabling for purposes of th e Act.

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P e rtin e n t medical records reveal that Plaintiff went to the White River Rural Health Center, Inc. ("Health Center") on April 8, 2004, complaining of fatigue and of " sle e p in g a lot." (Tr. 151) She returned to the Health Center on May 3, 2004, still c o m p la in in g of fatigue. (Tr. 149) On July 15, 2004, she returned to the Health Center c o m p la in in g of joint pain, restless legs, chronic fatigue, and arms and legs shaking out of c o n tr o l. (Tr. 147) She returned to the Health Center again on July 23, 2004, to discuss re su lts of the laboratory tests. (Tr. 145) Medical records indicate that the physician "re v iew ed very normal labs," but that "[patient] wants to pursue work up." (Tr. 145) Plaintiff was then referred to the University of Arkansas for Medical Sciences ("UAMS") fo r further tests. (Tr. 145) Plaintiff saw Dr. Eleanor Lipsmeyer and Dr. David Carrouth at UAMS. (Tr. 1868 9 ) Plaintiff complained of fatigue, generalized pain since February of 2004, "poor s le e p ," pain in her hips and hands, and some swelling in her hands. (Tr. 186) There was n o mention of arms and legs shaking out of control. Dr. Lipsmeyer found that Plaintiff had "full range of motion of all the joints." (Tr. 1 8 6 ) She also found "no active synovitis or synovial proliferation." (Tr. 186-87) "There [ w a s] good grip and curl of the hands." (Tr. 187) "Tender points [were] present 18/18." (Tr. 187) Dr. Lipsmeyer diagnosed depression and fibromyalgia syndrome and re c o m m e n d e d that Plaintiff take prescription Zoloft for depression, ibuprofen for pain, a n d Flexeril for bedtime sleep. (Tr. 187) Significantly, Dr. Lipsmeyer also

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re c o m m e n d e d that Plaintiff increase her exercise. (Tr. 187) Dr. Lipsmeyer did not re c o m m e n d that Plaintiff return to UAMS, and she did not recommend any prescription p a in medication. (Tr. 187) Tests conducted at Dr. Lipsmeyer's direction indicated: (1) n o acute cardiopulmonary process; (2) unremarkable cervical spine series; (3) u n rem ark ab le bony pelvis; and (4) unremarkable bilateral knees. (Tr. 193-94) Nothing in these medical records compels a finding that Ms. Robinson is so a f f e c te d by fibromyalgia that she is unable to function as a receptionist. Plaintiff takes e x c ep tio n to the finding that she could perform a full range of medium work and argues that no doctor had concluded that Robinson could perform medium work. (Plaintiff's B r ie f at 9) She concedes, however, that "agency doctors," that is, non-treating doctors, d id find that Plaintiff could perform medium work in July and August of 2004. (Tr. 1344 4 ) Plaintiff makes much of the fact that this assessment was made when Plaintiff had b e e n diagnosed with chronic fatigue, but not yet with fibromyalgia. (Plaintiff's Brief at 1 0 ) Regardless of the label attached to Plaintiff's condition, whether fibromyalgia or c h ro n ic fatigue syndrome, the examination by "agency doctors" was conducted after P la in tif f had complained of disabling pain and fatigue, and the results were that Plaintiff c o u ld perform medium work. (Tr. 134-44) The relevant question is not what a condition is called, but rather whether symptoms prevent the Plaintiff from working. P la in tif f complains that she is unable to lift 50 pounds or frequently lift or carry 25 p o u n d s , as required for medium work. (Plaintiff's Brief at 9) While the ALJ found that

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P la in tif f could perform the full range of medium work, the fact is that Plaintiff's past re le v a n t work as a receptionist is considered "sedentary" work. Sedentary work involves lif tin g no more than 10 pounds at a time and occasionally lifting or carrying articles like d o c k e t files, ledgers, and small tools. 20 C.F.R. § 404.1567(a). Furthermore, there is nothing in any of the medical records to indicate that Ms. R o b inso n must, or even should, limit her physical activity. To the contrary, Dr. L ip sm e ye r, a treating physician, recommended that Plaintiff increase her level of activity a n d specifically recommended that Plaintiff begin water aerobics. (Tr. 187) C. C r e d ib i lity Determination and Inconsistencies in the Record

T h e ALJ based his finding that Plaintiff's subjective complaints were not fully c re d ib le in part on inconsistencies in the record. (Tr. 15) A review of the record reveals a number of inconsistencies. For example, Plaintiff told Dr. Boyd that she "sleeps thro u g h the night" (Tr. 203), but told Dr. Lipsmeyer she had "very poor sleep" (Tr. 186) She complained of decreased appetite (Tr. 186), but told Dr. Boyd her "appetite [was] n o rm a l," and that she had experienced "no recent weight gain or loss." (Tr. 203) When th e ALJ asked Plaintiff whether there had been "any significant change in [her] weight in th e last year or two," she answer that she had gained about 35 pounds and that her weight " g o e s up and down." (Tr. 224) Plaintiff testified at the hearing that she had a problem g rip p in g . "I can't grip." (Tr. 226) However, Dr. Lipsmeyer found that Plaintiff had a f u ll range of motion of all the joints, and that Plaintiff had "good grip and curl of the

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h a n d s." (Tr. 187) These inconsistencies were properly considered by the ALJ in d i sc o u n t in g Plaintiff's subjective complaints. P la in tif f 's self-reported level of activity also supports the ALJ's finding that P la in tif f 's subjective complaints regarding fatigue and pain were not fully credible. She to ld Dr. Boyd that she spent her days taking care of her three children, doing household c h o re s, doing shopping, and taking naps." (Tr. 203) She also reported attending church, w a tch in g televison, and going to baseball games. (Tr. 70) The ALJ was well within b o u n d s to take these inconsistencies into consideration when evaluating Plaintiff's s u b je c tiv e complaints. Furthermore, the ALJ's decision includes a careful review of factors set out in P o la s k i v. Heckler, supra. (Tr. 14-15) Plaintiff points to medical evidence that Dr. L ip s m e ye r's examination revealed that Plaintiff had eighteen out of eighteen "tender p o in ts" present. (Tr. 187) Plaintiff goes on to argue that a person is diagnosed with fib rom yalg ia with as few as eleven trigger points. (Plaintiff's Brief at 13) Plaintiff's a rg u m e n t misses the point. The ALJ found that Plaintiff had fibromyalgia, and that it was " se v e re " for purposes of the Act. Finding that a claimant has a diagnosed illness is not th e same as finding that the condition is disabling in that person. See Stormo v. Barnhart, 3 7 7 F.3d 801, 807 (8th Cir. 2004)("That a claimant has medically-documented im p a irm e n ts does not perforce result in a finding of disability.")

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D.

F a i lu r e to Develop the Record

P la in tif f also complains that the ALJ failed to develop the record, arguing that the A L J should have sought additional information from Plaintiff's treating physicians. (Plaintiff's Brief at 16-17) Plaintiff is correct in her statement that an ALJ has a duty to f u lly and fairly develop the record. Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2 0 0 6 )(" A social security hearing is a non-adversarial proceeding, and the ALJ has a duty to fully develop the record.") However, "Plaintiff bears a heavy burden in showing the re c o rd has been inadequately developed. [She] must show both a failure to develop n e c es s a ry evidence and unfairness or prejudice from that failure." Combs v. Astrue, 243 F e d .A p p x . 200, 204 (8th Cir. 2007). In this case, the ALJ was able to make an informed decision from the available re c o rd . There is no indication in this case that the ALJ was unable to make an assessment re g a rd in g Ms. Robinson's alleged disability, and his decision is supported by substantial e v id e n c e. See Tellez v. Barnhart, 403 F.3d 953, 956-57 (8th Cir. 2005). This Court's c o n f id e n c e in the ALJ's thoroughness is bolstered by the fact that the ALJ did send P la in tif f for a psychological consult after the hearing because he obviously believed that th e record was insufficient to determine what affect Plaintiff's depression had on her ab ility to work. (Tr. 229-231).

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V.

Conclusion: A careful review of the record as a whole reveals substantial support for the ALJ's

c o n c lu s io n that Mary K. Robinson is not disabled under the Act and that she is capable of return ing to her past work as a receptionist, which is classified as semi-skilled, sedentary w o rk . Accordingly, the finding that Plaintiff is not disabled, for purposes of the Social S ec u rity Act is AFFIRMED, and this case is DISMISSED WITH PREJUDICE. D A T E D this 1st day of February, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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