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)

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

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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:

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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

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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)
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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

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(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)

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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

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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

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