Bryant v. Social Security Administration
MEMORANDUM OPINION AND ORDER denying the Plaintiff's appeal; and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 9/15/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION A S H L E Y B. BRYANT v. NO.: 4:08-CV-00449-BD P L A IN T IF F
M I C H A E L J. ASTRUE, Commissioner, S o c ia l Security Administration M E M O R A N D U M OPINION AND ORDER
P la in tiff Ashley B. Bryant has appealed the final decision of the Commissioner of th e Social Security Administration (the "Commissioner") denying her claim for S u p p le m e n ta l Security Income ("SSI") benefits under Title XVI of the Social Security A c t. For the reasons that follow, the decision of the Administrative Law Judge ("ALJ")1 is affirmed. I. P r o c e d u r a l History: P la in tiff filed an application for SSI benefits on November 2, 2005. In the a p p lic a tio n , Plaintiff alleges she is disabled as a result of learning disabilities, back injury, a n d kidney problems.2 (Tr. 61) The ALJ held a hearing on August 23, 2007, and Plaintiff appeared with Shirley S u tte r, a non-attorney representative. The ALJ received testimony from Vocational E x p e rt ("VE") Ken Waits and Plaintiff, and also heard testimony from Plaintiff's
The Honorable Troy M. Patterson, Administrative Law Judge.
Although the claimant alleged an earlier disability date of July 28, 1983, SSI b e n e fits do not become payable until the month after the month in which the application is filed. 20 C.F.R. § 416.335. Therefore, the issue is whether the claimant was disabled fro m November 2, 2005, to September 27, 2007 (the date of the ALJ's decision).
husband, Bobby Bryant, and Plaintiff's mother-in-law, Debra Bryant. On September 27, 2 0 0 7 , the ALJ issued a decision denying Plaintiff benefits. (Tr. 31-38) Plaintiff filed the c u rre n t Complaint for Review of Decision (docket entry #2) on May 27, 2008. II. B ackground: A t the time of the hearing, Plaintiff was a 24-year-old female with a twelfth-grade e d u c a tio n . She had no past relevant work experience for purposes of the Social Security A d m in is tra tio n ,3 but Plaintiff testified that she had worked in the past as a janitor, photo s tu d io manager, and substitute teacher. (Tr. 334) Plaintiff was 5 feet 5 inches tall and w e ig h e d 186 pounds. She had two minor children, ages 3 and 1. Plaintiff testified that s h e takes care of her two children, cooks, drives, shops, and goes to church every week. (Tr. 339-340) Plaintiff's early school records reflect a diagnosis of borderline intellectual fu n c tio n in g and learning disability, especially with respect to reading. She was placed in re s o u rc e classes from grades 4-12. (Tr. 190-207) P la in tiff claims she has suffered chronic pain in her back, neck, and shoulders, as w e ll as frequent kidney infections, since being involved in a motor vehicle accident in 1 9 9 7 . (Tr. 119) Plaintiff claims that she has been administered painkilling injections d u rin g emergency room visits to relieve her back pain, and that doctors have prescribed o th e r medications for that purpose. (Tr. 149) Plaintiff has provided no medical records to substantiate these claims.
Plaintiff did not perform any of her past work at the level of substantial gainful a c tiv ity . (Tr. 35) Accordingly, her past work did not qualify as "past relevant work." Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009). -2-
Plaintiff's medical records show that, from October 24, 2005 to May 25, 2006, she h a d periodic prenatal evaluations and sought treatment for a spider bite on January 19, 2 0 0 6 . (Tr. 235-238, 234) O n January 23, 2006, Plaintiff underwent a general medical examination at the re q u e s t of the Social Security Administration ("SSA"). (Tr. 267-273) The examiner c o n c lu d e d that Plaintiff's physical impairments resulted in a "mild limitation" in lifting, c a rry in g , and squatting. (Tr. 273) O n July 12, 2006, Dr. Kenneth Hobby evaluated Plaintiff's mental status and a d a p tiv e functioning on behalf of the SSA. (Tr. 247-262) Based on the results of the e x a m in a tio n , Dr. Hobby concluded that the most likely area of difficulty for the Plaintiff in a workplace setting would be "her reported physical problems," adding that the P la in tiff "would probably respond adequately to work pressure in a work setting if she c o u ld physically and academically do the work." (Tr. 262) On August 11, 2006, Dr. Daniel K. Pace conducted a magnetic resonance imaging (M R I) of Plaintiff's lumbar spine in response to her complaints of back pain and leg n u m b n e s s . (Tr. 188) The MRI revealed minimal disk bulges in the L4-L5 and L5-S1 re g io n s . (Tr. 188) Dr. Pace assessed the MRI results as comprising the "minimal c h a n g e s of spondylosis [spinal osteoarthritis]." (Tr. 188) O n July 24, 2007, Dr. Pace conducted a physical examination of Plaintiff, who c o m p la in e d of chronic back pain and pelvic pain. (Tr. 315) Dr. Pace diagnosed Plaintiff w ith persistent lower back pain with spondylosis, and referred her to a neurologist for fu rth e r evaluation. (Tr. 316) In addition, Dr. Pace diagnosed Plaintiff with chronic pelvic
pain due to suspected endometriosis, and referred her back to her regular physician for fu rth e r evaluation. (Tr. 316) Dr. Pace prescribed no medications for pain. (Tr. 316) III. F in d in g s of the ALJ: T h e ALJ followed the required five-step sequential analysis set out in 20 C.F.R. § 416.920(a)(4), finding: (1) that Plaintiff had not engaged in substantial gainful activity a t any time, including since the onset of her alleged disability; (2) that she suffered from a s e v e re impairment as that term is interpreted for purposes of the Social Security R e g u la tio n s ; (3) that Plaintiff did not have an impairment, or combination of im p a irm e n ts, that rose to the level of severity for any impairment listed in Appendix 1 to S u b p a rt P of 20 C.F.R. § 404 ( "Appendix 1"); (4) that she did not have any past relevant w o rk ; but (5) that Plaintiff retained the residual functional capacity ("RFC") to perform a fu ll range of light, unskilled work4 . At step five, the ALJ found that a significant number o f jobs existed in the economy which Plaintiff was capable of performing. P la in tiff contends that the ALJ's findings are not supported by substantial evidence a n d contain errors of law because the ALJ erred: (1) in finding that Plaintiff's im p a irm e n ts did not meet the level of severity of any impairment listed in Appendix 1; a n d (2) in assessing Plaintiff's RFC. T h e Defendant argues that the ALJ's decision is supported by substantial evidence b e c a u s e the ALJ properly determined: (1) that Plaintiff's impairments did not meet or e q u a l the level of severity of any listing in Appendix 1; (2) Plaintiff's RFC; (3) that
"Light work" is defined as work involving "lifting no more than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 4 0 4 .1 5 6 7 ( b ) . -4-
Plaintiff was not totally credible; and (4) that Plaintiff was not disabled under step five of 2 0 C.F.R. § 416.920(a)(4). IV . L e g a l Analysis: 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 decision. 42 U.S.C. § 405(g). This review function is limited, and the decision of the ALJ must be affirmed " if the record contains substantial evidence to support it." Edwards v. Barnhart, 314 F.3d 9 6 4 , 966 (8th Cir. 2003). "Substantial evidence is less than a preponderance but enough so that a reasonable m in d could find it adequate to support the decision." Id. Evidence that both supports and d e tra c ts from the ALJ's decision must be considered, but the decision cannot be reversed " m e re ly because there exists substantial evidence supporting a different outcome." Id. "Rather, if, after reviewing the record, . . . it is possible to draw two inconsistent positions fro m the evidence and one of those positions represents the [ALJ's] findings, we must a ffirm the decision of the [ALJ]." Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (c ita tio n s and quotations omitted). Thus, the Court's function on review is to determine w h e th e r the Commissioner's decision is supported by substantial evidence on the record a s a whole and whether it is based on legal error. Long v. Chater, 108 F.3d 185, 187 (8th C ir. 1997). A. S e v e r ity of Plaintiff's Impairments:
P la in tiff contends that the ALJ erred in finding that her impairments did not meet th e level of severity of any impairment listed in Appendix 1. Defendant disagrees, -5-
arguing that the ALJ correctly determined that Plaintiff's impairments did not meet or e q u a l any such level of severity. Plaintiff has the burden to prove that her impairments m e t or equaled a listing. See Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (c itin g Zebley v. Sullivan, 493 U.S. 521, 530-531 (1990)). To meet a listing, the im p a irm e n t must meet all of the specified criteria in the listing. Id. at 1070. Likewise, in o rd e r to equal a listing, Plaintiff must present medical findings equal in severity to all the c rite ria of the listed impairment. Marciniak v. Shalala, 49 F.3d 1350, 1351 (8th Cir. 1 9 9 5 ); Zebley, 493 U.S. at 530 (an impairment does not meet or equal a listing if it has o n ly some of the medical criteria, no matter how severe). P la in tiff argues that her impairments met or equaled the criteria in Listing 1.02 of A p p e n d ix 1, which describes symptoms relating to the major dysfunction of a joint in v o lv in g either: (A) one hip, knee, or ankle; or (B) both shoulders, elbows, wrists, or h a n d s . It appears that Plaintiff cites this listing in reference to her alleged knee, hip, and s h o u ld e r pain to which she testified at the hearing. (Tr. 332) Plaintiff, her husband, and h e r mother-in-law have all testified that in the months leading up to the hearing, P la in tiff's legs had "gone numb" without warning, causing her to fall. (Tr. 332, 336, 338) The ALJ sent Plaintiff for a physical consultation well over a year and a half before the h e a rin g . (Tr. 267-273) The examination showed no indication of inadequate functioning o f the hips, knees, ankles, shoulders, elbows, wrists, or hands. (Tr. 270) Dr. Pace c o n d u c te d a physical examination of Plaintiff July 24, 2007, one month before the h e a rin g , and did not note any major joint dysfunction. (Tr. 315-316) The complete a b s e n c e of medical evidence supporting Plaintiff's subjective complaints is a factor that
supports the discounting of such complaints. Kisling v. Chater, 105 F.3d 1255, 1257 (8th C ir. 1997). N e ith e r Plaintiff nor her representative requested that the ALJ send Plaintiff for a fo llo w -u p consultation to provide evidence of her condition. Plaintiff had the burden to m a k e sure the record contained at least some objective evidence to suggest a reasonable p o s s ib ility that a severe impairment existed. Hawkins v. Chater, 113 F.3d 1162, 1167 (1 0 th Cir. 1997) (citations omitted). Since the record contains no objective evidence of a n y impairment to the joints cited in Listing 1.02 of Appendix 1, the ALJ was correct in fin d in g Plaintiff did not satisfy her burden of proving the severity of impairment d e s c rib e d in the listing. P la in tiff argues that her back impairment met or equaled the level of severity d e s c rib e d in Listing 1.04 of Appendix 1, which describes disorders of the spine resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. On August 1 1 , 2006, Dr. Daniel Pace evaluated an MRI of Plaintiff's lumbar spine. (Tr. 188) The re s u lts of the MRI showed a "[m]inimal disk bulge . . . [v]ery minimal left posterior h e rn ia tio n of disk causing minimal indentation on left neural foramen" with respect to the L 4 -L 5 disk. (Tr. 188) As for the L5-S1 disk, the MRI showed a "[d]isk bulge . . . m in im a l left posterior herniation of bulging disk causes minimal indentation on left neural fo ra m e n ." (Tr. 188) The MRI report also mentioned "[m]inimal changes of s p o n d y lo s is ." (Tr. 188) The bulges noted in the MRI showed only a minimal indentation o n the neural foramina, and therefore provided no evidence of compromise of a nerve root (in c lu d in g the cauda equina) or the spinal cord has occurred. See Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993) (degenerative disk disease with mild posterior bulging not a d is a b lin g condition). Since the record contains no objective evidence of any impairment to the spine rising to the level of severity cited in Listing 1.04 of Appendix 1, the ALJ w a s correct in finding Plaintiff did not satisfy her burden of establishing that this im p a irm e n t met or equaled the level of severity described in the listing. B. P la in tiff's Residual Functional Capacity:
T h e ALJ bears the initial responsibility for assessing Plaintiff's RFC. Anderson v. S h a la la , 51 F.3d 777,779 (8th Cir. 1995). Plaintiff's RFC is what she can do despite her lim ita tio n s . 20 C.F.R. § 416.945 (2003). In determining Plaintiff's RFC, the ALJ has a d u ty to establish, by competent medical evidence, the physical and mental activity that P la in tiff can perform in a work setting, after giving appropriate consideration to all of her im p a irm e n ts. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). The ALJ must d e te rm in e the Plaintiff's RFC based on all relevant evidence, including medical records, o b s e rv a tio n s of treating physicians and others, and Plaintiff's own descriptions of her lim ita tio n s . Baldwin v. Barnhart, 349 F.3d 549, 566 (8th Cir. 2003); Pearsall v. M a s s a n a r i, 274 F.3d 1211, 1217 (8th Cir. 2001). T h e ALJ determined that Plaintiff maintained the RFC to perform a full range of lig h t, unskilled work. (Tr. 35) He estimated that Plaintiff retained the ability to perform lig h t work involving lifting no more than twenty pounds at a time with frequent lifting or c a rry in g of objects weighing up to ten pounds. (Tr. 35) The ALJ determined that, m e n ta lly , Plaintiff was limited to unskilled work where interpersonal contact is routine b u t superficial, complexity of tasks is learned by rote with few variables and little
judgment required, and where supervision required is little for routine but detailed for n o n -ro u tin e tasks. (Tr. 35) 1. P h y s ic a l Residual Functional Capacity:
T h e record contains substantial evidence to support the ALJ's physical RFC d e te rm in a tio n . During Plaintiff's general physical consultation on January 23, 2006, the d o c to r found no limitations in Plaintiff's range of motion or limb functioning. (Tr. 2702 7 1 ) The doctor found no limitations in Plaintiff's neurological or orthopedic fu n c tio n in g . (Tr. 270-271) The only limitation noted by the doctor was that walking over s p a n s of more than 50 feet would produce "exercise-limiting dyspnea [shortness of b re a th ]." (Tr. 268) Accordingly, the ALJ properly determined Plaintiff could physically p e rfo rm a full range of light work. 2. M e n ta l Residual Functional Capacity:
T h e record shows, and the ALJ found, that Plaintiff had some mild limitations in h e r mental functioning. On July 12, 2006, Dr. Hobby evaluated Plaintiff's mental status a n d adaptive functioning. (Tr. 247-262) Plaintiff scored a verbal IQ of 82, a performance IQ of 83, and a full-scale IQ of 77. (Tr. 257) Dr. Hobby considered the test results to be v a lid , with no evidence of exaggeration or malingering, or any attempt to manipulate the te s t results. (Tr. 254) Dr. Hobby estimated that Plaintiff's level of intellectual fu n c tio n in g was in the low average to borderline range. (Tr. 258) B a se d on the results of the examination, Dr. Hobby assigned Plaintiff a current G lo b a l Assessment of Functioning (GAF) score of 60, adding that she had a GAF score of
65 over the past year.5 (Tr. 253) Dr. Hobby estimated that the most likely area of d iffic u lty for the Plaintiff in a workplace setting would be "her reported physical p ro b le m s ." (Tr. 262) Dr. Hobby concluded that Plaintiff has the ability to understand, c a rry out, and remember instructions, as well as, a good capacity to respond appropriately to supervision and coworkers. (Tr. 262) Accordingly, the ALJ properly determined P la in tiff was capable of performing a full range of unskilled work. (Tr. 34) C. T h e ALJ's Credibility Determination:
U n d e r 20 C.F.R. § 416.929, the ALJ must consider all symptoms, including pain, a n d the extent to which these symptoms are consistent with the objective medical e v id e n c e . The ALJ is in the best position to gauge the credibility of testimony, and those c re d ib ility determinations are entitled to some deference. Estes v. Barnhart, 275 F.3d 7 2 2 , 724 (8th Cir. 2002). An ALJ's conclusions may be upheld if the record as a whole s u p p o rts it. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). T h e objective medical findings contained in the records do not support Plaintiff's a lle g a tio n s of disabling impairments. Plaintiff argues that the August 11, 2006, MRI re s u lts are indicative of a disabling spine condition. The medical examination of January 2 3 , 2006, however, revealed no orthopedic or range of motion limitations. Focal disc h e rn ia tio n with moderate restriction of motion in back contradicts complaints of disabling p a in . Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997).
The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), p u b lish e d by the American Psychiatric Association, states that a GAF of 51 to 60 in d ic a te s "moderate symptoms or moderate difficulty in social, occupational, or school fu n c tio n in g " (DSM-IV 32). A GAF of 61 to 70 indicates "some difficulty in social, o c c u p a tio n a l, or school functioning, but generally functioning pretty well" (DSM-IV 32). -10-
Plaintiff alleged chronic back, knee, shoulder, and hip problems. Plaintiff u n d e rw e n t a thorough medical examination on January 23, 2006, which showed no a b n o rm a lity in Plaintiff's neurological, orthopedic, limb, or range of motion functioning. (Tr. 270-271) The absence of medical evidence supporting a claimant's subjective c o m p la in ts is a factor that supports the discounting of such complaints. Kisling v. Chater, 1 0 5 F.3d 1255, 1257 (8th Cir. 1997). Furthermore, the evidence in the record showed th a t Plaintiff took only over-the-counter Tylenol to relieve her pain. A lack of p re s c rip tio n pain medication contradicts claimant's allegation of disability. Wilson v. C h a te r , 76 F.3d 238, 241 (8th Cir. 1996). T h e ALJ was required to consider the testimony of non-medical sources and third p a rtie s with regard to how Plaintiff's impairments affected her ability to work. Polaski v. H e c k le r , 739 F.2d 1320, 1322 (8th Cir. 1984). To that end, the ALJ considered the te s tim o n y of Plaintiff's mother-in-law and husband. The ALJ found that the testimony of th o s e witnesses "merely corroborated the testimony of the claimant . . . and appeared to b e based on an uncritical acceptance of her complaints and a desire to see the claimant re c e iv e benefits." (Tr. 35) While the testimony of family members must be given c o n s id e ra tio n , it need not be believed. Rautio v. Bowen, 862 F.2d 130 (8th Cir. 1998). Accordingly, the ALJ found the testimony of Plaintiff's family members was not fully s u p p o rte d by other substantial evidence. In evaluating Plaintiff's subjective complaints, the ALJ must give full c o n s id e ra tio n to all evidence presented, including Plaintiff's prior work record, daily a c tiv itie s and functional restrictions. Polaski, 739 F.2d at 1322. Plaintiff testified that
she had worked in the past as a janitor, photo studio manager, and substitute teacher. (Tr. 3 3 4 ) Plaintiff also testified that she could read only at a second-grade level. (Tr. 335) The ALJ determined it was unlikely that a person with only a second-grade reading level c o u ld perform the duties of a photo studio manager, which, according to Plaintiff, c o n s is te d of taking pictures, setting up props, filling out orders, and using a computer te rm in a l to ring up transactions. (Tr. 32) The ALJ also determined that Plaintiff's description of the severity of her im p a irm e n ts was inconsistent with her daily activities. Plaintiff testified that she takes c a re of her two children, cooks, drives, shops, and goes to church every week. (Tr. 3393 4 0 ) The ALJ found that the testimony relating to Plaintiff's work experience and routine o f daily activities was not consistent with that of a disabled person, but rather of a person w ith an advanced level of functioning. B a se d on the entire record, there is substantial evidence to support the ALJ's d e c is io n to discredit, to some degree, Plaintiff's subjective complaints. That does not m e a n Plaintiff did not actually suffer some pain or lower intellectual functioning, but m e re ly that the extent to which she described her limitations was not consistent with the a v a ila b le evidence. Accordingly, the ALJ properly determined that Plaintiff was not to ta lly credible. D. V o c a tio n a l Evidence and Significant Number of Jobs in the Economy:
If a plaintiff cannot perform her past relevant work, the burden of production shifts to the Commissioner to show that a significant number of jobs exist in the economy
which the plaintiff is capable of performing.6 20 C.F.R. § 416.920(a)(4)(v). In general, if P la in tiff suffered from nonexertional impairments that limited her ability to perform a full ra n g e of work, the ALJ would be required to utilize testimony of a VE. Groeper v. S u lliv a n , 932 F.2d 1234, 1235 n.1 (8th Cir. 1991). In order for the VE's testimony to c o n s titu te substantial evidence, it must be in response to a properly phrased hypothetical q u e s tio n which accurately describes a plaintiff's limitations. Hunt v. Barnhart, 250 F.3d 6 2 2 , 625 (8th Cir. 2001). T h e ALJ found that Plaintiff had the ability to perform light work involving lifting n o more than twenty pounds at a time, with frequent lifting or carrying of objects w e ig h in g up to ten pounds. (Tr. 35) Mentally, the ALJ determined that Plaintiff was lim ite d to unskilled work, where interpersonal contact is routine but superficial, c o m p le x ity of tasks is learned by rote with few variables and little judgment required, and w h e re supervision required is little for routine but detailed for non-routine tasks. (Tr. 35) In response to the ALJ's hypothetical question, the VE testified that an individual w ith Plaintiff's limitations could perform unskilled light and sedentary jobs in the a s s e m b ly field.7 (Tr. 342) In addition, the VE testified that an individual with Plaintiff's lim ita tio n s could perform light work in the fields of inspection, testing, sorting, sampling, a n d weighing.8 (Tr. 342-343) While there is no bright-line rule regarding the number of
Plaintiff did not have any past relevant work.
At the time of the hearing, there were approximately 8,800 of these jobs re g io n a lly , and 513,000 in the United States. At the time of the hearing, there were approximately 1,700 of these jobs re g io n a lly , and 454,000 in the United States. -138
jobs in the economy, it appears the Commissioner comfortably met his burden in this re s p e c t. See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (five hundred jobs w e re a legally sufficient number to meet the Commissioner's burden). Accordingly, the A L J properly determined that Plaintiff was not disabled under step five of 20 C.F.R. § 416.920(a)(4). V. C o n c lu s io n : T h e re is substantial evidence in the record to support the Commissioner's denial of b e n e fits to the Plaintiff. It appears, as the ALJ recognized, that Plaintiff suffered a severe im p a irm e n t. There is not, however, sufficient evidence to indicate that Plaintiff's im p a irm e n t met or equaled the level of severity of an impairment described in Appendix 1 . There is sufficient evidence in the record to support the ALJ's assessment that Plaintiff re ta in e d the capacity to perform a significant number of jobs in the national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the c a s e , this 15th day of September, 2009.
____________________________________ U N IT E D STATES MAGISTRATE JUDGE
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