Jasper v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing Pltf's complaint with prejudice; judgment will be entered accordingly. Signed by Magistrate Judge Beth Deere on 2/22/10. (vjt)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION J A C K IE J. JASPER v. N O . 4:08CV04182 BD DEFENDANT PLAINTIFF
M IC H A E L J. ASTRUE, Commissioner, Social Security Administration M E M O R A N D U M OPINION AND ORDER
P la in tif f , Jackie J. Jasper, has appealed the final decision of the Commissioner of the S o c ia l Security Administration ("Commissioner") denying his claim for Disability Insurance b e n e f its and Supplemental Security Income, based on disability. Both parties have su b m itte d appeal briefs and the case is ready for decision.1 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), 1383(c)(3). Substantial evidence is such relevant e v id e n c e as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th C ir. 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, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #11)
"Disability" is the "inability to engage in any substantial gainful activity by reason of a n y medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less th a n 12 months." 42 U.S.C. §§ 423(d)(1)(A); 1382(a)(3)(A). A "physical or mental im p a irm e n t" is "an impairment that results from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory d ia g n o stic techniques." 42 U.S.C. §§ 423(d)(3); 1382c(a)(3)(D). P la in tif f alleged that he was limited in his ability to work by right eye blindness, a rth ritis in his back, and neck problems. (Tr. 141) The Commissioner found that Plaintiff w a s not disabled within the meaning of the Social Security Act. The only issue before this C o u rt is whether the Commissioner's decision that Plaintiff was not disabled within the m e a n in g of the Act is supported by substantial record evidence. A f te r conducting an administrative hearing and a supplemental hearing, the A d m in is tra tiv e Law Judge2 ("ALJ") concluded that Plaintiff had not been under a disability w ith in the meaning of the Social Security Act at any time through May 29, 2008, the date of h is decision. (Tr. 20) On October 10, 2008, the Appeals Council denied Plaintiff's request f o r a review of the ALJ's decision, making the ALJ's decision the final decision of the C o m m is sio n e r. (Tr. 4-6) Plaintiff then filed his complaint initiating this appeal. (Docket # 2 ) After reviewing and considering the record as a whole, the Court finds that the decision o f the Commissioner is supported by substantial evidence. P la in tif f was fifty-three years old at the time of the hearing. (Tr. 343, 363, 367) He h a d completed one year of college (Tr. 145) and had past relevant work as a construction w o rk e r, cashier and janitor. (Tr. 120-22, 142, 360, 381)
The Honorable Mark S. Anderson. 2
The ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process to determine: (1) whether the claimant was engaged in su b sta n tia l gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if h e had a severe impairment, whether the impairment (or combination of impairments) met or e q u a le d 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 his past relevant work. If the claimant had sufficient re s id u a l functional capacity to perform past relevant work, the inquiry ends and benefits are d e n ie d . 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If a claimant cannot perform p a st relevant work, the analysis proceeds to step, that is, whether the claimant is able to m a k e an adjustment to other work, given his age, education and work experience. Id., § § 404.1520(a)(4)(v); 416.920(a)(4)(v). The ALJ found that Plaintiff had not engaged in substantial gainful activity on a su sta in e d basis3 since his alleged onset date. (Tr. 14) He found that Plaintiff had "severe" im p a irm e n ts : glaucoma, right-eye blindness, and a disorder of the back. Id. He determined th a t Plaintiff did not have an impairment or combination of impairments that met or equaled a Listing. Id. He judged that Plaintiff's allegations regarding the intensity, persistence and lim itin g effects of his symptoms were not totally credible. (Tr. 17) T h e ALJ found that Plaintiff retained the residual functional capacity for light work w h ic h did not require depth perception. (Tr. 15) Based on the testimony of a vocational e x p e rt witness responding to a hypothetical question, the ALJ found Plaintiff could perform
The ALJ noted that Plaintiff had engaged in substantial gainful activity for seven m o n th s in 2006 and three months in 2007, but gave him the "benefit of the doubt" and p ro c e e d e d with the sequential evaluation process. (Tr. 14) It is also worth noting that he a lle g e d an onset of May 10, 2002 (Tr. 142), but testified that he worked until 2003 (Tr. 346, 34 9 ). 3
his past relevant work as a cashier, notwithstanding his limitations. (Tr. 19) Thus, the ALJ c o n c lu d e d that Plaintiff was not disabled. (Tr. 20) P la in tif f contends the ALJ failed to consider his impairments in combination. (Br. 68 ) Plaintiff's point is not well taken. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994); B r o w n in g v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992). The ALJ's decision repeatedly re f e rs to a "combination of impairments." (Tr. 12, 13, 14, 18) He specifically considered " a ll of the claimant's impairments, including impairments that are not severe." (Tr. 13) The A L J acknowledged that Plaintiff might experience some degree of impairment "related p a rtic u la rly to glaucoma, right eye blindness, and disorder of the back." (Tr. 18) He re f e rre d to Plaintiff's "impairments." (Tr. 18, 19)(emphasis added.) He referred to P la in tif f 's "history of glaucoma, right eye blindness, and disorder of the back." (Tr. 19) Furthermore, the ALJ discussed at some length Plaintiff's limitations of function, which are a result of his cumulative impairments. (Tr. 14-15) N e x t, Plaintiff argues the ALJ did not properly assess his pain and credibility. (Br. 89 ) The ALJ considered Plaintiff's subjective complaints in light of Polaski v. Heckler, 739 F .2 d 1320 (8th Cir. 1984).4 (Tr. 15) T h e absence of an objective medical basis which supports the degree of se v e rity of subjective complaints alleged is just one factor to be considered in e v a lu a tin g the credibility of the testimony and complaints. The adjudicator m u s t give full consideration to all of the evidence presented relating to su b je c tiv e complaints, including the claimant's prior work record, and o b s e rv a tio n s by third parties and treating and examining physicians relating to su c h matters as: 1 . the claimant's daily activities; 2 . the duration, frequency and intensity of the pain;
The ALJ also cited Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529 and 4 1 6 .9 2 9 . (Tr. 15) That Ruling tracks Polaski and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and elaborates on them. 4
3. precipitating and aggravating factors; 4 . dosage, effectiveness and side effects of medication; 5 . functional restrictions. T h e adjudicator is not free to accept or reject the claimant's subjective c o m p la in ts solely on the basis of personal observations. Subjective complaints m a y be discounted if there are inconsistencies in the evidence as a whole. Polaski v. Heckler, 739 F.2d at 1322 (emphasis in original). T h e re 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 reason to discount th o s e 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 his allegations, the lack of more treatment (especially for his back and neck pain), P la in tif f 's daily activities (including working full-time during the time that he alleged that he w a s disabled), his functional capabilities, and the lack of greater restriction placed on P la in tif f by his physicians, the ALJ could rightly discount Plaintiff's subjective complaints. See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (ALJ may discount su b je c tiv e complaints if there are inconsistencies in the record as a whole); Dunahoo v. A p fe l, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may discount complaints inconsistent with th e evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1996) (after full c o n s id e ra tio n of all evidence relating to subjective complaints, ALJ may discount c o m p la in ts if there are inconsistencies in evidence as a whole). Plaintiff completed a Disability Supplemental Interview Outline dated November 27, 2 0 0 3 . (Tr. 128-32A) He indicated that he lived alone, walked (Tr. 128), prepared seven b re a k f a s ts a week and three to four suppers, cooked four to six hours three to four times a w e e k (Tr. 129), washed clothes, raked the yard when his back was not hurting, cleaned 5
house, shopped for food, rode his bicycle downtown four to five times a month which took tw o to three hours round trip (Tr. 130), and went to church, where he was a brotherhood m e m b e r, and sang in the choir seven times a month (Tr. 132). He testified that he drove and w a s contemplating attending school to learn about computers. (Tr. 376) Plaintiff engaged in extensive daily activities, which is inconsistent with the level of pain and limitation a lle g e d . See Clevenger v. Social Security Administration, 567 F.3d 971, 976 (8th Cir. 2 0 0 9 )(n o t unreasonable for ALJ to rely on array of activities, including laundry, dishes, c h a n g in g sheets, ironing, preparing meals, driving, attending church and visiting friends and f a m ily, to infer assertion of disabling pain was not credible); Roberson v. Astrue, 481 F.3d 1 0 2 0 , 1025 (8th Cir. 2007)(plaintiff cared for eleven-year-old daughter, drove her to school, d ro v e elsewhere, fixed simple meals, did housework, shopped for groceries and had no tro u b le handling money); Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)(plaintiff p e rf o rm e d household chores, mowed the lawn, raked leaves, shopped for groceries and d ro v e a car); Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir. 2004)(plaintiff attended college c la s s e s and church, shopped for groceries, ran errands, cooked, drove, walked for exercise a n d visited friends and relatives); 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 s h e d cars, shopped, cooked, paid bills, drove, attended church, watched television, lis te n e d to radio, read and visited friends and relatives); Gray v. Apfel, 192 F.3d 799, 804 (8 th Cir. 1999)(plaintiff cared for himself, did household chores, drove short distance, p e rf o rm e d other miscellaneous activities); Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1 9 9 9 )(p la in tif f cooked some meals, watered flowers around house, helped wife paint, w a tc h e d television, went out for dinner, occasionally drove and occasionally visited with f rie n d s); Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)(plaintiff dressed and bathed h e rs e lf , did some housework, cooking and shopping); Pena v. Chater, 76 F.3d 906, 908 (8th 6
Cir. 1995)(daily caring for one child, driving when unable to find ride and sometimes going to grocery); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1995)(visiting neighbors, cooking o w n meals, doing own laundry and attending church); Novotny v. Chater, 72 F.3d 669, 671 (8 th Cir. 1995)(carrying out garbage, carrying grocery bags, driving wife to and from work in c o n s is te n t with extreme, disabling pain); Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1 9 9 5 )(p la in tif f cooked breakfast, sometimes needed help with household cleaning and other c h o re s , visited friends and relatives and attended church twice a month); Woolf v. Shalala, 3 F .3 d at 1213 (plaintiff lived alone, drove, shopped for groceries and did housework with so m e help from neighbor). P la in tif f told medical personnel that he had experienced pain in his right eye for tw e n ty years after a high school football injury. (Tr. 177, 250, 259) He worked despite that im p a irm e n t for a number of years. A condition that was not disabling during working years, a n d which has not worsened, cannot be used to prove present disability. Naber v. Shalala, 2 2 F.3d 186, 189 (8th Cir. 1994); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990); see a ls o Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)(claimant successfully employed m a n y years with current cognitive abilities). T h e visual acuity in Plaintiff's left eye was "perfect or near perfect" according to T e rre ll M. Hemelt, M.D., who examined him. (Tr. 178) His visual acuity in that eye re p e a te d ly tested 20/25. (Tr. 178, 259) Dr. Hemelt thought Plaintiff was capable of sitting, sta n d in g , walking, lifting, carrying, handling objects, hearing, speaking, traveling, and u n d e rsta n d in g instructions. (Tr. 178) J. Mayne Parker, M.D., an ophthalmologist, examined P la in tif f after the first hearing.5 (Tr. 259) He offered his opinion that Plaintiff "should be
The ALJ incorrectly identified Dr. Parker as a treating physician. (Tr. 19) He was not. It does not appear that Plaintiff saw any physician more than once after 2003. (Tr. 158-261) 7
able to work and lift heavy objects, but should not climb or use moving tools or machinery. . . . With only one eye depth perception is not present." Id. The ALJ's credibility analysis was proper. He utilized the proper standards, made e x p re s s credibility findings and gave multiple reasons for discrediting Plaintiff's subjective c o m p la in ts . E.g., Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996); Reynolds v. Chater, 8 2 F.3d at 258; Hall v. Chater, 62 F.3d 220, 224 (8th Cir. 1995). His credibility findings a re entitled to deference as long as they are supported by good reasons and substantial e v id e n c e . Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). It is not the task of this Court to review the evidence and make an independent d e c is io n . Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on th e record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F .3 d 259, 262 (8th Cir. 1996); 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 on 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. A c c o rd in g ly, the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice, this 22nd day of February, 2010.
UNITED STATES MAGISTRATE JUDGE
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