Hall v. Social Security Administration

Filing 10

MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal. The Clerk is directed to close the case. Signed by Magistrate Judge Beth Deere on 2/20/09. (hph)

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 D E B O R A H J. HALL V. NO. 4:08CV00002-BD PLAINTIFF

M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration

DEFENDANT

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

P la in tif f Deborah J. Hall brings this action for review of a final decision of the C o m m iss io n e r of the Social Security Administration ("Commissioner") denying her claim f o r Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the "A ct"). I. A d m in is tr a t iv e Proceedings: P la in tif f filed her application for DIB on August 11, 2005, alleging disability since M ay 30, 2005. (Tr. 53) The claim was denied initially and upon reconsideration. (Tr. 3 4 -3 5 ) A hearing was held before an Administrative Law Judge 1 ("ALJ") on January 12, 2 0 0 7 . (Tr. 13, 319) Ms. Hall was present at the hearing, along with her attorney. (Tr. 321)

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The Honorable Penny M. Smith. 1

O n March 28, 2007, the ALJ issued a decision finding that Plaintiff was not d is a b le d under the Act and denying her claim for benefits. (Tr. 13-19) On November 9, 2 0 0 7 , the Appeals Council denied Plaintiff's request for review (Tr. 4-6), making the A L J 's decision the final decision of the Commissioner. Plaintiff seeks judicial review fro m this decision under 42 U.S.C. § 405(g). II. B a c k gro u n d : A t the time of the hearing, Plaintiff was forty-four years old and lived with her h u s b a n d . (Tr. 325, 373) She had an eleventh grade education and had passed a general e d u c a tio n a l development test. (Tr. 325) Plaintiff claimed disability based on lumbar disc d is e a se , left knee pain, and bipolar disorder. (Tr. 106) She was taking Depakote and P r o z a c for the bipolar disorder, and over-the-counter pain relievers. (Tr. 367) III. A L J 's Decision: T h e ALJ followed the required five-step sequence to determine: (1) whether the c la im a n t was engaged in substantial gainful activity; (2) if not, whether the claimant had a s e v e r e impairment; (3) if so, whether the impairment (or combination of impairments) m et or equaled an impairment listed in the Listing of Impairments in Appendix 1, Subpart P , 20 C.F.R. Part 404; (4) if not, whether the impairment (or combination of impairments) p re v e n te d the claimant from doing past relevant work; and (5) if so, whether the

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im p a irm e n t (or combination of impairments) prevented the claimant from performing any o th e r jobs available in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)-(g). The ALJ found that Plaintiff was not engaged in substantial gainful activity, and th a t she suffered from degenerative disc disease of the lumbar spine, degenerative joint d is e a s e of the left knee, and bipolar disorder. (Tr. 15) Plaintiff did not suffer from a " lis te d " impairment, or combination of impairments, according to the ALJ's findings. (Tr. 15) The ALJ determined that Plaintiff did not have the residual functional capacity (" R F C " ) to perform her past, relevant work. (Tr. 18) She found, based on the testimony o f a vocational expert ("VE"), however, that there are a significant number of jobs in the n a tio n a l economy which Plaintiff could perform. (Tr. 18) IV . A n a l y s is : A. S ta n d a r d of Review

In reviewing the Commissioner's decision, this Court must determine whether th e re is substantial evidence in the administrative record to support the decision. 42 U .S .C . § 405(g). "Substantial evidence is evidence that a reasonable mind would find a d e q u ate to support the ALJ's conclusion." Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2 0 0 7 ). In reviewing the record as a whole, the Court "must consider the evidence which d e tra c ts from the Commissioner's decision, as well as the evidence in support of the d e c i sio n ," but the decision cannot be reversed, "simply because some evidence supports a

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c o n c lu s io n other than that of the Commissioner." Pelkey v. Barhart, 433 F3d 575, 578 (8 th Cir. 2006). B. Plaintiff's Impairments

P lain tiff complains the ALJ ignored Plaintiff's complaints of upper extremity n u m b n e ss and fatigue leading to a low GAF score. At the hearing, the ALJ noted P lain tiff 's low back pain, torn left knee meniscus, and bipolar disorder and then asked if th e re were any other medically determinable impairments that Plaintiff wanted her to f o c u s on. (Tr. 360-61) The only additional impairment mentioned by Plaintiff's counsel w a s residual effects from a spider bite which the ALJ found was not "severe." (Tr. 15, 3 6 1 ) Plaintiff did not raise upper extremity numbness or fatigue as potentially severe im p a irm e n ts in her application for benefits or at the hearing. Although the ALJ must fairly and fully develop the record, she "is not obliged `to in v e stig a te a claim not presented at the time of the application for benefits and not offered a t the hearing as a basis for disability.'" Gregg v. Barnhart, 354 F.3d 710, 713 (8th C ir.2 0 0 3 ) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)). There is no bright lin e rule indicating when the Commissioner has or has not adequately developed the re c o rd ; rather, such an assessment is made on a case-by-case basis. Mouser v. Astrue, 545 F .3 d 634, 639 (8th Cir. 2008). P la in tif f points the Court to three instances on the record where the Plaintiff c o m p la in e d of upper extremity numbness. The first is in a progress note from Wesley C.

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T h o m a s, M.D. In the note, Dr. Thomas states that Plaintiff has "occasional numbness and w e a k n es s in her hands, especially the right hand. Radiating pain up the arm at times and it does not bother her all the time. It is not bothering her at this time." (Tr. 192) The p h ys ic ia n assessed the numbness as "likely due to a pinched nerve in her neck, d e g e n era tiv e disc disease in the neck." Dr. Thomas asked Plaintiff to pay more attention to which fingers were affected. (Tr. 192) When Plaintiff returned to the clinic in April, J u n e , July, and August, 2006, she did not complain about numbness in her extremities. At the hearing, Plaintiff claimed that on December 31, 2006, she "experienced a b u rn in g pain go through the right side of my head into my chest and down my arm. And s in c e then the tingling's just grew." (Tr. 372) In March 2007, Plaintiff complained of n u m b n e ss in her right arm to Jack F. Dunn, D.O. (Tr. 270) Dr. Dunn diagnosed Plaintiff w ith a muscle spasm, and stated it was his impression Plaintiff had neuropathy to the right u p p e r extremity. (Tr. 270) Dr. Dunn did not order any follow-up tests. According to the m e d ic a l records, Plaintiff did not complain of right arm numbness or tingling during her v is it to the clinic in April, 2007. Given the lack of objective medical evidence on the record and Plaintiff's failure to claim upper extremity numbness as an impairment at the time of filing or at the h e a rin g , the ALJ was not required to investigate further. Plaintiff also claims the ALJ ignored her "fatigue secondary to bipolar disorder" w h i c h resulted in a low GAF score. (#7 at p.11) Plaintiff did not claim fatigue as a

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s e v e re impairment at the time of filing or at the hearing. Further, GAF does not have a d ire c t correlation to the severity requirements in mental disorders listings. 65 Fed. Reg. 5 0 7 4 6 , 50764-65 (2000). The GAF assigned to Plaintiff was assigned by Erin Willcutt, a University of Central Arkansas student. (Tr. 214) A student is not an "acceptable m e d ica l source" upon which the ALJ may rely to establish a medically determinable im p a irm e n t. 20 C.F.R. §§ 404.1513(a) (2006). Under the circumstances, the ALJ was n o t required to investigate the Plaintiff's fatigue and GAF score further. C. P la in tiff's Residual Functional Capacity

T h e ALJ must determine the claimant's RFC based on all relevant evidence, inclu d ing medical records, observations of treating physicians and others, and claimant's o w n descriptions of his limitations. Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2 0 0 5 ); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 2 7 4 F.3d 1211, 1217 (8th Cir. 2001). In this case, the ALJ concluded, based on the entire record, that Plaintiff had the R F C to: p e rf o rm sedentary work which involves lifting and/or carrying up to 10 p o u n d s occasionally and less than 10 pounds frequently, standing/walking 2 h o u rs in an 8-hour workday; alternating sitting and standing with standing u p to 20 minutes at one time continuously; no climbing of s c a ff o ld s /la d d e rs /ro p e s; occasional climbing of ramps and stairs; occasional s to o p in g , crouching, crawling, kneeling and balancing; and only superficial co n tact with the public and little supervision for routine work but more s u p e rv is io n for non-routine work. (Tr. 16) 6

P lain tiff complains that the ALJ drew her own inferences about Plaintiff's ability ra th e r than relying on the opinions of treating and examining physicians when making the R F C assessment. As Plaintiff acknowledges, however, the ALJ outlined Plaintiff's p h ys ic a l problems as described in the medical records of her treating and examining p h ysic ian in some detail. (Tr. 17-18) The ALJ noted that, despite Plaintiff's complaints o f back pain radiating to the right leg, a June 10, 2005 MRI showed no nerve root c o m p r e s s io n , and the examination noted good movement in her leg. (Tr. 17) Regarding P lain tiff 's knee pain, the ALJ noted that, in spite of Plaintiff's complaints about pain in h e r knees, her surgery was cancelled due to the Plaintiff's financial issues, and that P lain tiff treats her pain with over-the-counter medication. (Tr. 17) The ALJ also noted that at a psychological examination, Steve A. Shry, Ph.D. s ta te d that Plaintiff did not appear to have any physical limitations. (Tr. 158) When he a sk e d Plaintiff whether she thought surgery would improve her knee condition, she said, " I really don't know, but I doubt it." (Tr. 155) T h e ALJ acknowledged that Plaintiff had a history of bipolar disorder, but during h e r examination with Dr. Shry, on November 21, 2005, she did not appear to be actively p s yc h o tic or manic, and did not appear to be psychologically impaired in adaptive f u n c tio n in g . (Tr. 17) A progress note dated September 1, 2006, indicated that Plaintiff w a s "stable on Prozac." (Tr. 187) Further, the Plaintiff testified that while she was on P r o z a c, she had no crying spells. (Tr. 367)

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P lain tiff 's argument seeks to place the burden of proof on the Commissioner, but it is the claimant's burden, and not that of the Commissioner, to prove residual functional c a p a c ity. Goff v. Barnhart, 421 F.3d 785,790 (8th Cir. 2005); Eichelberger v. Barnhart, 3 9 0 F.3d 584, 591 (8th Cir. 2004). If more information was needed from her treating and e x a m in in g physicians to establish her RFC, it was Plaintiff's burden to introduce that e v id e n c e at the hearing or asked for the record to be held open so that she could introduce th e evidence. In this case, Plaintiff did neither. Plaintiff argues that the ALJ impermissibly relied on opinions of state agency p h ys ic ia n s who did not examine her. (#7 at p. 11) The ALJ considered these physicians' fin d ing s as required by 20 C.F.R. § 404.1527(f)(2)(i). (Tr. 16) She did not, however, im p erm issib ly rely on their findings in making her RFC determination. (Tr. 15-18) In f a ct, the ALJ's RFC assessment differed from the conclusions of state agency physicians th a t Plaintiff was capable of lifting twenty pounds occasionally and 10 pounds frequently a n d was capable of standing and walking 6 hours in an 8-hour workday. (Tr. 161-62) F u r th e r, there was a lack of restrictions on Plaintiff's activities by her physicians. See R a n e y v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (none of claimant's treating p h ysician s offered opinion she was so impaired or disabled she could not work any job); H e n s le y v. Barnhart, 352 F.3d 353, 357 (8th Cir. 2003)(no functional restrictions on a c tiv itie s is inconsistent with claim of disability); Depover v. Barnhart, 349 F.3d 563, 567 (8 th Cir. 2003)(ALJ may consider absence of such opinion by treating physicians).

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T h e ALJ properly assessed Plaintiff's RFC based on all of the relevant evidence, a n d there is substantial evidence in the administrative record to support the C o m m is s io n e r' s conclusion. D. P la in tiff's Credibility

F in a lly, Plaintiff claims the ALJ's credibility determination was unsupported by c re d ib le evidence, and that she erred in discrediting Plaintiff's subjective complaints of p a in . (Tr. 16-18) The ALJ considered Plaintiff's subjective complaints in light of P o la s k i v. Heckler, 739 F.2d 1320 (8th Cir. 1984). (Tr. 16-18) In addition, the ALJ cited S o c i a l Security Ruling 96-7p and 20 C.F.R. § 404.1529 (Tr. 16-17) which tracks Polaski a n d 20 C.F.R. § 404.1529(c)(3), and elaborates on them. U n d e r the Court's holding in Polaski, the ALJ must consider all of the evidence p rese n ted relating to Plaintiff's subjective complaints, including the her prior work re c o rd , and observations by third parties and treating and examining physicians relating to s u c h matters as: 1. 2. 3. 4. 5. the claimant's daily activities; the duration, frequency and intensity of the pain; precipitating and aggravating factors; dosage, effectiveness and side effects of medication; functional restrictions.

T h e adjudicator is not free to accept or reject the claimant's subjective c o m p l a in t s solely on the basis of personal observations. Subjective c o m p l a in ts may be discounted if there are inconsistencies in the evidence as a whole. Polaski v. Heckler, 739 F.2d at 1322 (emphasis in original). 9

A t the hearing, Plaintiff testified that she could only sit for 15 minutes (Tr. 361), c o u ld only stand for 15 or 20 minutes (Tr. 362), could walk about 50 yards (Tr. 365), and n e e d ed reminding to take her medicine (Tr. 369). In a Function Report dated August 24, 2 0 0 5 (Tr. 93), however, Plaintiff indicated that she: groomed without assistance (Tr. 87); d id not need reminders to take care of her personal needs (Tr. 88); cooked family meals ( T r . 88); went outside, walked, and drove (Tr. 89); shopped for groceries two times a w ee k for one to two hours (Tr. 89); paid bills, used a checkbook and counted change (Tr. 8 9 ); attended church on a regular basis (Tr. 90); played piano and guitar (Tr. 90); watched te le v i sio n (Tr. 90); and read (Tr. 90). In a Social Security Disability Report dated August 2 4 , 2005, Plaintiff stated that walking and standing caused her pain, but did not mention sittin g as a source of pain. (Tr. 94) Further, in a September 28, 2006 Disability Report, P la in tif f again mentioned only standing and walking for "long periods of time" as lim iting her ability to work. (Tr. 106) The ALJ made express credibility findings and gave her reasons for discrediting P la in tif f 's subjective complaints. E.g., Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1 9 9 6 ); Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Hall v. Chater, 62 F.3d 220, 2 2 4 (8th Cir. 1995). Plaintiff engaged in daily activities, which are inconsistent with the le v e l of pain and limitation alleged. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2 0 0 1 )(p la in tif f took care of personal needs, washed dishes, changed sheets, vacuumed, w a sh e d cars, shopped, cooked, paid bills, drove, attended church, watched television,

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listen e d to radio, read and visited friends and relatives); Lawrence v. Chater, 107 F.3d 6 7 4 , 676 (8th Cir. 1997)(plaintiff dressed and bathed herself, did some housework, c o o k in g and shopping). Given the inconsistencies in Plaintiff's statements, the lack of m e d ica l evidence in support of Plaintiff's allegations, the lack of more treatment, P la in tif f 's daily activities, her functional capabilities and the lack of restriction placed on P la in tif f by her physicians, the ALJ appropriately discounted Plaintiff's subjective c o m p la in ts . See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (ALJ may d isco u n t subjective complaints if there are inconsistencies in the record as a whole); D u n a h o o v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may discount complaints in c o n sis ten t with the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1 9 9 6 ) (after full consideration of all evidence relating to subjective complaints, ALJ may d is c o u n t complaints if there are inconsistencies in evidence as a whole). V. C o n c lu s io n : T h e Court has reviewed all of the evidence in the record, including all of the m ed ical evidence, the agency physicians' assessments, and the hearing transcript. There is substantial evidence in the record as a whole to support the Commissioner's conclusion that Plaintiff had the residual functional capacity to make an adjustment to other work a v a ila b le in the local, regional, and national economy.

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A c c o rd in g ly, Plaintiff's appeal is DENIED. The Clerk is directed to close the c a se , this 20th day of February, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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