Smith v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER supporting the Commissioner's conclusion; denying Plaintiff's appeal; and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 3/17/09. (hph)

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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 E T R A T. SMITH V. NO. 4:08CV00190-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 Deetra T. Smith 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 c t" ) and Supplemental Security income ("SSI") under Title XVI of the Act. I. A d m in is tr a t iv e Proceedings: P la in tif f filed her application for DIB and SSI on April 27, 2004, alleging d is a b ility since January 1, 2002. (Tr. 60, 292) At the hearing, Plaintiff amended her claim s to allege a disability onset date of December 31, 2004. (Tr. 482) The claims were d en ied initially and upon reconsideration. (Tr. 40-41, 46-47) A hearing was held before a n Administrative Law Judge 1 ("ALJ") on March 28, 2006. (Tr. 480) Ms. Smith was p re se n t at the hearing, along with her mother and her attorney. (Tr. 480) 1 The Honorable Donald R. Rebsamen. 1 O n March 28, 2006, the ALJ issued a decision finding that Plaintiff was not d is a b le d under the Act and denying her claims for benefits. (Tr. 14-19) On November 9, 2 0 0 7 , the Appeals Council denied Plaintiff's request for review (Tr. 5-7), 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 twenty-six years old and lived with her m o ther. (Tr. 18, 483) She had a high school education and a CNA certificate. (Tr. 484) Plaintiff was taking over-the-counter pain relievers. (Tr. 487) Plaintiff had prescriptions f o r Clarinex, Diazide, Nexium, Advair, Albuterol, Flonase, and Paxil which she could not a f f o rd to fill on a regular basis. (Tr. 487-89) 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 2 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), 416.920(a)-(g) (2005). The ALJ found that Plaintiff was not engaged in substantial gainful activity since th e amended onset date, and that she suffered from asthma with shortness of breath, o b e sity, and lower back pain. (Tr. 16) Plaintiff did not suffer from a "listed" impairment, o r combination of impairments, according to the ALJ's findings. (Tr. 16) The ALJ d eterm ined that Plaintiff did not have the residual functional capacity ("RFC") to perform h e r past, relevant work. (Tr. 18) He found, based on the testimony of a vocational e x p e rt ("VE"), however, that there was a significant number of jobs in the national e c o n o m y 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 3 c o n c lu s io n other than that of the Commissioner." Pelkey v. Barhart, 433 F.3d 575, 578 (8 th Cir. 2006). B. D e v e lo p m e n t of the Record P la in tif f claims the ALJ failed to properly develop the record. Specifically, P la in tif f claims that the ALJ should have more fully developed the record in regards to a statem en t of Dr. Kenneth Counts, a psychologist who examined Plaintiff in 2002. Dr. C o u n ts found that Plaintiff "appeared depressed," and he recommended psychological c o u n se lin g . Plaintiff also points to a report from Dr. Janet Dean, who examined the P la in tif f on December 12, 2004, which noted that the Plaintiff limped into the interview. According to Plaintiff, the reference to Plaintiff's limping put the ALJ on notice of the n e e d to further develop evidence of Plaintiff's physical impairments. It is the ALJ's duty to develop the record fully and fairly. Snead v. Barnhart, 360 F .3 d 834, 836-37 (8th Cir. 2004). A plaintiff seeking to show that the record has been inad eq u ately developed by the ALJ must show "both a failure to develop necessary e v id e n c e and unfairness or prejudice from that failure." Combs v. Astrue, 243 Fed. Appx. 2 0 0 , 204 (8th Cir. 2007) (citing Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2 0 0 1 ). "[C]ontacting a treating physician is necessary only if the doctor's records are `in a d e q u ate for us to determine whether [the claimant is] disabled' such as `when the re p o rt from your medical source contains a conflict or ambiguity that must be resolved, th e report does not contain all the necessary information, or does not appear to be based 4 o n medically acceptable clinical and laboratory diagnostic techniques.'" Goff v. B a rn h a rt, 421 F.3d 785, 791 (8th Cir. 2005) (citing 20 C.F.R. 404.1512(e), 4 1 6 .9 1 2 ( e ) ) . In this case, a 2002 report from Dr. Counts suggesting Plaintiff might benefit from s o m e psychological counseling does not warrant further development of the record. See S t o r m o v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (an ALJ does not have to seek a d d itio n a l clarifying statements from a treating physician unless a crucial issue is u n d e v e lo p e d ) (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). As the ALJ n o te d , Dr. Janice Dean, Ph.D., evaluated the Plaintiff on December 6, 2004 and noted that P la in tif f had received counseling a few years prior. (Tr. 172) Dr. Dean ruled out d ep ressive disorder after her evaluation of Plaintiff (Tr. 173), and found that Plaintiff's th o u g h t processes were logical and goal directed. Plaintiff reported having no suicidal th o u g h ts ; she appeared to be in touch with reality; and her abstract thinking and judgment w e re intact. (Tr. 172-74) The ALJ also noted that Plaintiff testified that when she had a c ce ss to Paxil it controlled her depression symptoms. (Tr. 485) The evidence in the re c o rd regarding Plaintiff's alleged mental impairment was sufficient, and Plaintiff was n o t prejudiced by the ALJ's failure to further develop the record. Additionally, there was no need to further develop the record related to Plaintiff's a lle g e d physical impairments. While Dr. Dean did report that Plaintiff limped into the in te rv ie w room, this statement alone is not enough to warrant further investigation by the 5 A L J . (Tr. 174) Physical residual functional capacity assessments of Plaintiff in 2005 f o u n d that Plaintiff was capable of standing or walking six hours in an eight hour day and h a d no postural limitations. (Tr. 230-31, 238-39) A vocational analysis of Plaintiff on J a n u a ry 3, 2005, found that Plaintiff could stand and/or walk a total of six hours per eight h o u r day. (Tr. 88) Further, Plaintiff reported her activities included doing laundry, ir o n in g , vacuuming, sweeping, taking out the trash, shopping for clothes and groceries, p rep aring meals for up to an hour and a half, and walking for exercise. (Tr. 89-90) As additional support for her position, Plaintiff points to a December 10, 2002 re p o rt by a consulting physician, Dr. J. L. Prichard, who examined Plaintiff at the C o m m is s io n e r's request as part of a prior claim for benefits. Dr. Prichard reported that P la in tif f had restrictive range of motion, generalized muscle weakness, and could not w a lk on her heels and toes or arise from a squatted position. Plaintiff did not allege d is a b ility due to muscle weakness or pain in her feet in her current application or at the h e a rin g . Although the ALJ must fairly and fully develop the record, he "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 Cir. 2 0 0 3 ) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)). Further, the report was m ad e more than a year before Plaintiff's alleged onset date and, in the report, Dr. Prichard d id not provide any explanation for his findings. (Tr. 143-49) 6 G iven the lack of objective medical evidence on the record and Plaintiff's failure to claim muscle weakness or pain in her feet as impairments at the time of filing or at the h e a rin g , the ALJ was not required to investigate further. C. T h e ALJ's Mental Evaluation T h e Plaintiff argues the ALJ's mental evaluation did not follow the special p s yc h o lo g ic a l technique described in 20 C.F.R. 416.920(a). Specifically, Plaintiff a rg u e s the ALJ's findings regarding Plaintiff's mental restrictions are inconsistent with th e opinions of Dr. Counts and Dr. Dean. (#9 at p. 13) The ALJ, however, properly e v a lu a te d Plaintiff's mental impairment. Dr. Dean diagnosed Plaintiff with pain disorder a ss o c iate d with a general medical condition, degenerative disk disease, and cannabis a b u se , but ruled out "Depressive Disorder NOS." (Tr. 174) Dr. Dean further reported th a t Plaintiff's concentration, persistence and pace were adequate and within normal lim its , and Plaintiff had no limitations in cognitive functioning that suggested cognitive lim itatio n s in adaptive functioning. (Tr. 174) Dr. Counts, in his evaluation of Plaintiff in D e c em b e r 2002, did suggest that Plaintiff seek some psychological counseling; and a c co rd in g to Dr. Dean's report, she did. Neither doctor reported that Plaintiff was su f f e rin g from a disabling mental impairment. G iv e n these reports and Plaintiff's testimony that when on Paxil, her depression w as controlled, the ALJ appropriately found Plaintiff was able to perform work "where in ter p e rso n a l contact is incidental to work performed, where complexity of tasks is 7 le a rn e d and performed by rote with few variables and little judgment required. Supervision required should be simple, direct and concrete." (Tr. 16-17) D. P la in tiff's Obesity P la in tif f complains that the ALJ failed to properly consider her obesity and factor its limitations into his hypotheticals. Plaintiff, however, offered no objective medical e v id e n c e to support a conclusion that Plaintiff had any limitations associated with her o b e sity. None of Plaintiff's treating physicians imposed any work-related restrictions on P la in tif f because of her obesity. Accordingly, the ALJ's decision not to include obesityre la te d restrictions in his hypotheticals was supported by substantial evidence. See Forte v . Barnhart, 377 F.3d 892, 896-97 (8th Cir. 2004) (ALJ's failure to discuss obesity was n o t fatal where none of claimants treating physicians imposed work-related limitations on the claimant because of his obesity). E. T h e Hypotheticals Posed to the Vocational Expert P lain tiff argues that the ALJ posed hypotheticals to the vocational expert that did n o t reflect all of the claimant's non-exertional impairments related to "her high blood p re ss u re , obesity, pain, depression, and other non-strength impairments." However, as s e t forth above, additional limitations were not supported by the medical evidence in the rec o rd. Further, additional limitations were not supported by Plaintiff's testimony. In sp ite of Plaintiff's reports of pain, she testified that she did not take any prescribed pain m e d ic a tio n . (Tr. 489) Plaintiff stated her activities include laundry, ironing, vacuuming, 8 s w e e p in g , taking out the trash, shopping for clothes and groceries, preparing meals up for u p to an hour and a half, walking for exercise, and driving. (Tr. 89-90) The hypothetical p o s e d to the vocational expert by the ALJ covered all Plaintiff's limitations and none x e rtio n a l impairments that were supported by the evidence. F. A d d itio n a l Evidence Submitted to the Appeals Council A f te r the ALJ issued his decision, Plaintiff submitted additional evidence to the A p p e a ls Council in an attempt to gain review. The additional evidence included medical re c o rd s from University of Arkansas for Medical Sciences from June 6, 2007 to June 8, 2 0 0 7 ; from Rural Health Center from June 6, 2007; and from Stuttgart Regional Medical C e n te r from June 3, 2007. The Appeals Council considered the new evidence submitted b y the Plaintiff, but denied review stating, "[w]e found that this information does not p rov ide a basis for changing the Administrative Law Judge's decision." (Tr. 5-6) Plaintiff claims the new evidence must lead the Court to the conclusion that the ALJ's d e c is io n is not supported by substantial evidence. When a claimant submits new evidence to the Appeals Council, and the Appeals C o u n c il considers the evidence but denies review, the evidence becomes part of the re c o rd and is considered in the "substantial evidence" review. Browning v. Sullivan, 958 F .2 d 817, 822-23 (8th Cir. 1992). The Court has reviewed the additional evidence in d ic a tin g that Plaintiff suffered a stroke after the ALJ's decision was issued. While the e v id e n c e submitted adds some support for Plaintiff's contention that her physical 9 im p a irm e n ts are worsening and may be grounds for a new application, the additional e v id e n c e does not dilute the record to the point that the ALJ's ultimate finding is in s u f f ic ie n tly supported.2 Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997). V. C o n c lu s io n : T h e Court has reviewed all of the evidence in the record. There is substantial e v id e n c e in the record as a whole to support the Commissioner's conclusion that Plaintiff h a d the residual functional capacity to make an adjustment to other work available in the lo c a l, regional, and national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the c a se , this 17th day of March, 2009. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE The new evidence also substantiates that Plaintiff continues to smoke and use d ru g s in spite of her asthma. (Tr. 317-18, 345, 350, 423) 10 2

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