Chisum v. Social Security Administration

Filing 10

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION recommending that the District Court affirm the final determination of the Commissioner and dismiss 2 Plaintiff's Complaint with prejudice. Objections to R&R due by 7/7/2009. Signed by Magistrate Judge Beth Deere on 6/23/09. (hph)

Download PDF
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION P A M R. CHISUM v. M IC H A E L J. ASTRUE, C o m m is sio n e r , Social Security Administration, CASE NO. 4:08CV00628 JMM/BD PLAINTIFF DEFENDANT P R O P O S E D FINDINGS AND RECOMMENDED DISPOSITION I. In s tr u c tio n s T h is recommended disposition has been submitted to United States District Judge Ja m e s M. Moody. The parties may file specific objections to these findings and re c o m m e n d a tio n s and must provide the factual or legal basis for each objection. The o b je c tio n s must be filed with the Clerk no later than eleven (11) days from your receipt of th e findings and recommendations. A copy of objections must be served on the opposing p a rty. The District Judge, even in the absence of objections, may reject these proposed f in d in g s and recommendations, in whole or in part. II. R e c o m m e n d e d Disposition P la in tif f , Pam R. Chisum, has appealed the final decision of the Commissioner of the S o c ia l Security Administration denying her claim for Disability Insurance benefits and S u p p le m e n ta l Security Income based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision. T h e Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ); see also, 42 U.S.C. 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 0 2 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it. The Court m a y not reverse the Commissioner's decision, however, just because substantial evidence w o u ld support a decision different from that of the ALJ. Sultan v. Barnhart, 368 F.3d 857, 8 6 3 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). U n d e r the Social Security Act ("the Act"), "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or m e n ta l impairment which can be expected to result in death or which has lasted or can be e x p e c te d to last for a continuous period of not less than 12 months." 42 U.S.C. 423(d)(1)(A) and 1382(a)(3)(A). A "physical or mental impairment" is "an impairment th a t results from anatomical, physiological, or psychological abnormalities which are d e m o n stra b le by medically acceptable clinical and laboratory diagnostic techniques." 42 U .S .C . 423(d)(3) and 1382(a)(C)(I). P la in tif f alleged that she was limited in her ability to work by arthritis, multiple su rg e rie s , and an inability to get around. (Tr. 88) After conducting an administrative h e a rin g , the Administrative Law Judge1 (ALJ) concluded that Plaintiff had not been under a d is a b ility within the meaning of the Act at any time through January 9, 2008, the date of his d e c is io n . (Tr. 22-23) On June 9, 2008, the Appeals Council received and considered a d d itio n a l evidence but denied Plaintiff's request for a review of the ALJ's decision. Thus, th e ALJ's decision became the final decision of the Commissioner. (Tr. 3-5) Plaintiff filed th e complaint in this case initiating an appeal (docket entry #2). After considering the 1 The Honorable William M. Manico. 2 record as a whole, the Court concludes that the decision of the Commissioner is supported b y substantial evidence. P la in tif f was 44 years old at the time of the hearing. (Tr. 278, 294) She was a high school graduate (Tr. 92, 257), with past relevant work as a grocery cashier (Tr. 81, 89, 98). T h e ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process. The first step involves a determination of whether the c la im a n 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) (2007). 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). S te p 2 involves a determination of whether the claimant's claimed impairments are " s e v e re " and meet the duration requirement. Id. at 404.1520(a)(4)(ii); 416.920(a)(4)(ii). A "severe" impairment significantly limits a claimant's ability to perform basic work a c tiv itie s . Id. at 404.1520(c); 416.920(c). S te p 3 involves a determination of whether the severe impairments meet or equal a lis te d impairment. Id. at 404.1520(a)(4)(iii) and 416.920(a)(4)(iii). If so, and the d u ra tio n requirement is met, benefits are awarded. Id. If the claimant does not meet or e q u a l a Listing, then a residual functional capacity assessment is made. Id. at 404.1520(a)(4) and 416.920(a)(4). At Step 4, a determination is made as to 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. Id. S te p 5 involves a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given claimant's age, education and work experience. Id., 404.1520(a)(4)(v) and 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are a w a rd e d . Id. 3 In this case, the ALJ found that Plaintiff had not engaged in substantial gainful a c tiv ity since her alleged onset date. (Tr. 15) He found that she had "severe" impairments: a remote injury to her right knee requiring multiple surgeries and a rotator cuff tear to her rig h t shoulder. Id. He found she did not have an impairment or combination of impairments th a t met or equaled a Listing. (Tr. 19) He judged that Plaintiff's allegations regarding her lim ita tio n s were not entirely credible. (Tr. 19-21) T h e ALJ found that Plaintiff retained the residual functional capacity for sedentary w o rk . (Tr. 19) He found that she was unable to perform her past relevant work. (Tr. 21-22) The ALJ applied Plaintiff's vocational profile and the residual functional capacity which he h a d found, and established that Rule 201.28, Table No. 1, Appendix 2, Subpart P, R e g u la tio n s No. 4 directed a finding that Plaintiff was not disabled. (Tr. 22) Thus, the ALJ c o n c lu d e d that Plaintiff was not disabled. Id. P la in tif f contends that the ALJ erred by failing to evaluate her back and left shoulder. (Br. 8-9) Plaintiff's point is not well taken. The ALJ discussed Plaintiff's complaints of b o th back and shoulder pain. (Tr. 15, 16, 17) Plaintiff also argues that the ALJ erred in his evaluation of opinion evidence. (Br. 91 3 ) On August 20, 2007, Clifford L. Evans, M.D., wrote a letter on behalf of Plaintiff. (Tr. 2 3 0 , 2342 ) In pertinent part, it stated: M s . Chisum is a patient under my care. Ms. Chisum is disabled due to a motor v e h ic le accident in 1986 where she received multiple fractures. She also has a rth ritis , depression and anxiety. Ms. Chisum in unable to work due to these m e d ic a l disabilities. Id. Dr. Evans wrote a second to-whom-it-may-concern letter soon after the ALJ's d e c is io n . (Tr. 253) In pertinent part, it stated: 2 There is some duplication in the record. 4 Pamela Chisum is a patient of mine. She is disabled due to an old motor v e h ic le accident where she sustained several fractures. She now has D e g e n e ra tiv e Arthritis, Depression and Anxiety. This patient has had a total o f 26 surgeries. She had seven surgeries on her right leg. She has chronic lu m b a r pain and has had Epidural Steroid Injections in her lumbar spine due to b u lg in g disc. This patient uses a cane to ambulate. Her Depression and A n x ie ty is aggravated by the fact the she is unable to get up and around to do th e things that she used to be able to do, such as work. This patient takes H yd ro c o d o n e 10/650 one or two tablets three times a day. This makes the pain to le ra b le and makes it possible for her to carry out her activities of daily living, su c h as bathing, etc. It is my opinion that this patient is disabled and unable to w o rk . Id . Plaintiff contends that Dr. Evans was a treating physician. (Br. 9) When he wrote th e first letter, however, Dr. Evans had first seen Plaintiff three months before. (Tr. 240) The treating physician rule is premised, at least in part, on the notion that a treating p h ys ic ia n is usually more familiar with a claimant's medical condition than are other p h ys ic ia n s . Thomas v. Sullivan, 928 F.2d 255, 259 n.3 (8th Cir. 1991). As of August 2007, D r. Evans was not entitled to treating physician status. See Randolph v. Barnhart, 386 F.3d 8 3 5 , 840 (8th Cir. 2004) (noting that the doctor had only met with patient on three occasions w h e n she filled out checklist). "Generally, the longer a treating source has treated you and th e more times you have been seen by a treating source, the more weight we will give to the so u rc e 's medical opinion." 20 C.F.R. 404.1527(d)(2)(i), 416.927(d)(2)(i) (2007). Furthermore, a doctor's opinion that a claimant is "disabled" is entitled to no deference b e c a u se findings of disability are reserved to the Commissioner. Robson v. Astrue, 526 F.3d 3 8 9 , 393 (8th Cir. 2008); House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007). P la in tif f also argues that the ALJ improperly rejected the opinion of John Dobbs, M .D ., who consultatively examined her in July of 2006. (Br. 9) Dr. Dobbs noted a reduced ra n g e of motion in Plaintiff's lumbar spine, right shoulder and right knee, but otherwise f o u n d a full range of motion of the spine and all extremities. (Tr. 108) He observed that 5 Plaintiff walked slowly with a cane, but noted no muscle atrophy or sensory abnormality. (Tr. 109) Plaintiff was neurologically intact. Id. Circulation was normal, and Dr. Dobbs n o te d no edema. (Tr. 110) Plaintiff was oriented to time, person and place, but appeared so m e w h a t sedated secondary to central nervous system depression medications. (Tr. 1101 1 ) (The ALJ noted that Plaintiff had taken psychotropic medication through August of 2 0 0 6 , but not thereafter (Tr. 19)) The ALJ discussed Dr. Dobbs's examination and o b s e rv a tio n s , but never rejected any opinion; he just decided that the results of the e x a m in a tio n were not inconsistent with sedentary work. (Tr. 15-16, 19) P la in tif f also contends that the ALJ failed to consider the opinion of her long-time tre a tin g physician William Berry, M.D. (Br. 9) The "opinion" that Plaintiff contends the A L J failed to consider is contained in an office note dated February 20, 2006, which states th a t the plan was for Plaintiff "[illegible] go back on disability."3 (Br. 6, Tr. 133) That is n o t a medical opinion that the ALJ needed to address.4 Plaintiff was still working at that tim e and did not allege an onset of disability until the following month. (Tr. 15, 133) A fair re a d in g of the ALJ's decision leads to a conclusion that he adequately addressed medical o p in io n s . P la in tif f also faults the ALJ's credibility determination. (Br. 13-15) The ALJ c o n s id e re d Plaintiff's credibility in accordance with the applicable regulations.5 F a c to rs relevant to your symptoms, such as pain, which we will c o n s id e r include: (i) Your daily activities; Plaintiff had apparently received Disability Insurance benefits from November, 1992, th ro u g h December, 2004. (Tr. 13) 4 3 This was also a question reserved to the Commissioner. The ALJ also cited Social Security Ruling 96-7p. (Tr. 20) That Ruling tracks the factors o f Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) and 20 C.F.R. 404.1529(c)(3) and 4 1 6 .9 2 9 (c )(3 ) and elaborates on them. 6 5 (ii) The location, duration, frequency, and intensity of your pain or o th e r symptoms; (iii) Precipitating and aggravating factors; (iv ) The type, dosage, effectiveness, and side effects of any medication yo u take or have taken to alleviate your pain or other symptoms; (v ) Treatment, other than medication, you receive or have received for re lie f of your pain or other symptoms; (v i) Any measures you use or have used to relieve your pain or other sym p to m s (e.g., lying flat on your back, standing for 15 to 20 minutes every h o u r, sleeping on a board, etc.); and (v ii) Other factors concerning your functional limitations and re s tric tio n s due to pain or other symptoms. 2 0 C.F.R. 404.1529(c)(3); 416.929(c)(3) (2007). There is little objective support in the record for Plaintiff's claim of disability. No e v a lu a tio n s showed medical conditions that were disabling. Furthermore, inconsistencies b e tw e e n the medical evidence and Plaintiff's subjective complaints gave the ALJ reason to d is c o u n t those complaints. Richmond v. Shalala, 23 F.3d 1141, 1443 (8th Cir. 1994). Given the inconsistencies in Plaintiff's statements, the lack of medical evidence in su p p o rt of her allegations, the lack of treatment for significant periods of time, Plaintiff's p o o r work record, her functional capabilities, and the lack of restriction placed on Plaintiff b y her physicians, the ALJ could rightly discount Plaintiff's subjective complaints. See, e .g ., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (holding that the ALJ may d is c o 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 s is te n t with the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1 9 9 6 ) (holding that, after full consideration of all evidence relating to subjective complaints, A L J may discount complaints if there are inconsistencies in evidence as a whole). Plaintiff left her last job April 8, 2006, when she was fired, not because she could not d o the job, but for "mouthing" and "causing trouble." (Tr. 257) She filed for Disability In s u ra n c e benefits and Supplemental Security Income three days later. (Tr. 13) 7 Plaintiff claimed to be legally blind without her contact lenses (Tr. 67); however, her c o rre c te d vision was 20/40 and 20/30. (Tr. 107) She testified that she started using a cane a f te r an incident in which she stepped in a hole in her yard. (Tr. 263) She did see a doctor a f te r she stepped in the hole, and he took an x-ray (Tr. 265). This visit occurred after P la in tif f left her last job. Id. Plaintiff points to medical evidence of her stepping in a hole. (Br. 14) That evidence, however, dates to October 10, 2001, almost five years before she sto p p e d working. (Tr. 216) In addition, as the ALJ pointed out (Tr. 16-17), there is an a p p a re n t gap in medical treatment between August 16, 2006, and May 16, 2007. (Tr. 112, 2 4 0 ) The ALJ's credibility analysis was proper. He made express credibility findings and g a v e his reasons for discrediting Plaintiff's subjective complaints. See e.g., Shelton v. C h a te r , 87 F.3d 992, 995 (8th Cir. 1996); Reynolds v. Chater, 82 F.3d at 258; Hall v. C h a te r , 62 F.3d 220, 224 (8th Cir. 1995). His credibility findings are entitled to deference a s long as they are supported by good reasons and substantial evidence. Gregg v. Barnhart, 3 5 4 F.3d 710, 714 (8th Cir. 2003). Finally, Plaintiff contends that the ALJ erred by failing to fully and fairly develop the re c o rd when he did not obtain results of MRIs ordered by Dr. Berry. (Br. 15-16) The ALJ a llo w e d Plaintiff's attorney6 two weeks to track down results of MRIs ordered by Dr. Berry. (T r. 294-95) There is some question as to whether these MRIs were ever conducted. (Tr. 1 6 ) In any event, there is no indication that Plaintiff's attorney requested additional time to lo c a te the MRI results or otherwise indicated that he needed assistance obtaining them. Plaintiff bears a heavy burden in showing the record has been inadequately developed. She m u st show both a failure to develop necessary evidence and unfairness or prejudice from 6 Plaintiff is represented by different counsel on appeal from her attorney at the hearing. 8 that failure. Combs v. Astrue, 243 Fed.Appx. 200, 204 (8th Cir. 2007); Robinson v. Astrue, 2 0 0 8 WL 312034 (E.D. Ark.). Plaintiff has failed to make such a showing. It is not the task of this Court to make an independent decision; nor can the Court re v e rs e the decision of the ALJ solely because there is some evidence in the record contrary to his findings. The test is whether there is substantial evidence on the record as a whole w h ic h supports the ALJ's decision. See e.g., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1 9 9 6 ); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, the tra n s c rip t of the hearing, and the medical and other evidence. There is ample evidence in the re c o rd as a whole that "a reasonable mind might accept as adequate to support [the] c o n c lu s io n " of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also R e u tte r ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d e c is io n is not based on legal error. F o r these reasons, the Court hereby recommends that the District Court affirm the f in a l determination of the Commissioner and dismiss Plaintiff's complaint with prejudice. D A T E D this 23rd day of June, 2009. UNITED STATES MAGISTRATE JUDGE 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?