Trafford v. Social Security Administration
MEMORANDUM OPINION AND ORDER denying Ms. Trafford's appeal and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 7/26/11. (hph)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 4:10CV00937 BD
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Trafford brings this action for review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her claim
for a period of disability and Disability Insurance Benefits (“DIB”) under Title II and
Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security
Act (the “Act”). For reasons that follow, the decision of the Administrative Law Judge
(“ALJ”) is AFFIRMED.1
Ms. Trafford protectively filed her applications for DIB and SSI on April 5, 2006.
She alleged disability since April 11, 2005, due to fibromyalgia, nerve problems,
breathing problems, and depression. (Tr. 134)
After the Commissioner denied her applications at the initial and reconsideration
stages of administrative review, Ms. Trafford requested a hearing before an ALJ. The
The Honorable Penny M. Smith, Administrative Law Judge.
ALJ held a hearing on March 26, 2008, and Ms. Trafford appeared with her attorney. (Tr.
At the time of the hearing, Ms. Trafford was a thirty-eight years old. She had an
eleventh-grade education and had earned a General Educational Development (“GED”)
credential. (Tr. 14) Ms. Trafford had past relevant work as an office manager and
detention officer. (Tr. 15-20, 72, 135)
At the hearing, the ALJ received testimony from Ms. Trafford and vocational
expert Tanya Owen. On July 31, 2008, the ALJ issued a decision denying Ms. Trafford
benefits. (Tr. 62-74) The Appeals Council denied Ms. Trafford’s request for review on
May 18, 2010. (Tr. 1-5) She filed the current Complaint for Review of Decision (docket
entry #1) on July 16, 2010.
Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; (4) if not, whether the impairment (or combination of
impairments) prevented the claimant from performing past relevant work 2 ; and (5) if so,
whether the impairment (or combination of impairments) prevented the claimant from
If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R.
performing any other jobs available in significant numbers in the national economy. 20
C.F.R. § 404.1520(a)-(g); 20 C.F.R. § 416.920(a)-(g).
The ALJ found that Ms. Trafford had not engaged in substantial gainful activity
since the onset of her alleged disability. (Tr. 64) Her depression, panic disorder,
degenerative disc disease, osteoarthritis, and seizure disorder were deemed severe
impairments. (Tr. 64-65) According to the ALJ, Ms. Trafford did not have an
impairment or combination of impairments that met or equaled an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 65-67)
The ALJ determined that Ms. Trafford retained the residual functional capacity
(“RFC”) to perform a limited range of sedentary work.3 (Tr. 67-72) With this RFC, Ms.
Trafford could not perform her past relevant work. (Tr. 72) Based on the testimony of
the vocational expert, however, the ALJ found that Ms. Trafford could perform
The ALJ found that Ms. Trafford retained the RFC to frequently lift or carry less
than ten pounds, and occasionally lift or carry ten pounds; push or pull within the limits
for lifting and carrying; sit with normal breaks for a total of six hours in an eight-hour
work day; and stand or walk with normal breaks for at least two hours in an eight-hour
work day. Ms. Trafford could not climb ladders, scaffolds, or ropes, and should not be
exposed to unprotected heights or dangerous machinery. She could not drive or carry a
firearm. Ms. Trafford could occasionally climb ramps and stairs, stoop, bend, crouch,
crawl, kneel, or balance. She must work where instructions are simple and non-complex,
interpersonal contact with coworkers and the public is incidental to the work performed,
the complexity of tasks is learned and performed by rote, the work is routine and
repetitive, there are few variables, little judgment is required, and the supervision is
simple, direct, and concrete. (Tr. 42-43, 67)
significant numbers of jobs existing in the national economy as an assembly worker or
circuit board assembler. (Tr. 42-45, 73-74)
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the administrative record to support the decision. Slusser
v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); 42 U.S.C. § 405(g). “Substantial evidence is
evidence that a reasonable mind would find adequate to support the ALJ’s conclusion.”
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision. The
decision cannot be reversed, however, “simply because some evidence may support the
opposite conclusion.” Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)(quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
Ms. Trafford claims the findings of the ALJ are not supported by substantial
evidence because: (1) the ALJ’s summation of evidence was not a fair representation of
the medical record; (2) the ALJ erred in failing to fully and fairly develop the record; and
(3) the ALJ erred in the weight she afforded Dr. Seme’s opinion. (#11)
The Medical Record
Ms. Trafford argues that the ALJ’s decision did not fairly take into consideration
the medical record. (#11, p. 11-12) First, she argues that the ALJ unfairly concluded that
her balance and coordination issues were the result of sinus problems. (Tr. 69) The
genesis of this issue was a doctor visit on April 25, 2006, where Ms. Trafford complained
of balance, coordination, and vision problems. (Tr. 332)
At the visit, Clifford L. Evans, M.D., noted that an MRI revealed sinus problems.
(Tr. 332) Dr. Evans also advised Ms. Trafford to stop driving. (Tr. 333) Dr. Evans did
not specifically find that the sinus problems caused the balance, coordination, and vision
issues. Besides a possible inner ear problem, however, no other explanation for these
problems appears in the record.4 There were no tests (other than the MRI that showed
sinus problems) conducted regarding these issues. In addition, at the next visit on May
12, 2006, there was no mention of balance, coordination, or vision problems. (Tr. 330331)
Regardless of what caused the balance, coordination, and vision problems, the ALJ
accounted for these problems in the RFC determination. The ALJ found that Ms.
A doctor visit on July 17, 2006, indicates an inner ear problem and sinus
pressure. (Tr. 514) Almost two years later, a doctor notes “a history of Meniere disease.”
(Tr. 546, 549) Meniere’s disease could affect balance. There are, however, no tests
confirming Meniere’s disease in the record. The MRI “showed sinus problems.” (Tr.
332) There are also no diagnoses or treatments for Meniere’s disease in the record.
Trafford could not drive, which was the only restriction Dr. Evans listed after noting the
balance, coordination, and vision problems. (Tr. 67, 333)
The ALJ also found that Ms. Trafford could not work around unprotected heights
or dangerous machinery, and could not climb ladders, scaffolds, or ropes. (Tr. 67)
Regardless of the cause of these problems, or their lasting effect, the ALJ accounted for
them in her opinion. Accordingly, there was no reversible error in how the ALJ
accounted for this part of the medical record. See McGinnis v. Chater, 74 F.3d 873, 875
(8th Cir. 1996) (arguable deficiency in opinion-writing insufficient reason for remand
when the deficiency has no effect on the outcome of the case).
Next, Ms Trafford takes issue with the ALJ’s comment that Dr. Melissa Seme’s
opinions were not supported by testing. (#11, p. 12) This issue involves the weight
assigned to Dr. Seme’s opinion, which the Court will address in a following section. See
Section E, infra.
Finally, Ms. Trafford takes issue with the ALJ’s interpretation of Dr. Sam Boyd’s
medical opinions. (#11, p. 12) The ALJ discussed Dr. Boyd’s mental status evaluation
and stated, “[Dr. Boyd] expressed his opinion that the claimant’s conditions could be
improved with appropriate outpatient psychotherapy and medical management.” (Tr. 70)
Ms. Trafford argues that this is not a fair representation of Dr. Boyd’s opinion. In the
prognosis at issue, Dr. Boyd stated:
Ms. [Trafford] is taking some psychotropic medications, but
has received very little outpatient mental health treatment. In
fact, her only outpatient mental health treatment consisted of
three sessions of counseling with me in 2004. Therefore, with
appropriate outpatient psychotherapy and medication
management, it is possible that Ms. [Trafford’s] condition
could improve somewhat during the next 12 months.
However, due to the chronicity and severity of her disorders,
it is unlikely that she would show significant improvement.
After reviewing the record, it is clear the ALJ did not interpret Dr. Boyd’s opinion
unfairly. The ALJ stated that Ms. Trafford’s conditions could be improved with
appropriate outpatient psychotherapy and medical management. (Tr. 70) Dr. Boyd stated
that Ms. Trafford’s conditions could be improved somewhat, but significant improvement
was unlikely. (Tr. 392) The ALJ did not repeat Dr. Boyd’s specific wording in stating
that Ms. Trafford’s conditions could be improved somewhat, but neither did the ALJ
conclude that Ms. Trafford’s conditions could be improved significantly.
Ms. Trafford presents an interesting argument by first alleging longstanding,
severe mental impairments; then seeking, as stated by Dr. Boyd, “very little outpatient
mental health treatment”; and finally, faulting the ALJ for noting that psychotherapy and
medication management could improve her condition. It is difficult to conceive how the
ALJ’s comment could be reversible error under these circumstances. Regardless, the ALJ
found every mental diagnosis made by Dr. Boyd to be a severe impairment. (Tr. 64, 392)
These findings square with Dr. Boyd’s assessment that it would be unlikely for Ms.
Trafford’s conditions to improve significantly, even if she sought outpatient
psychotherapy and medication management. After reviewing the entire record, the Court
cannot find error in the ALJ’s discussion of the medical record.
Development of the Record
It is the ALJ’s duty to develop the record fully and fairly. Snead v. Barnhart, 360
F.3d 834, 836-37 (8th Cir. 2004). This duty is independent of the claimant’s burden to
press his or her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (citation
omitted). A duty to develop additional evidence arises when medical source evidence is
inadequate to determine disability. 20 C.F.R. § 404.1512(e).
A claimant seeking to show that the record was inadequately developed by the ALJ
must show, “both a failure to develop necessary evidence and unfairness or prejudice
from that failure.” Combs v. Astrue, 243 Fed. Appx. 200, 204 (8th Cir. 2007) (citing
Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001)). “[R]eversal due to failure to
develop the record is only warranted where such failure is unfair or prejudicial.”
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir.1995).
The record in this case contains almost 300 pages of medical records. (Tr. 235364, 368-387, 420-523, 536-559) In addition, the record contains two separate mental
status evaluations, a psychiatric review, and a mental RFC assessment. (Tr. 388-399,
402-415, 416-419, 527-532) Also, Ms. Trafford had an opportunity to provide evidence
at the administrative hearing. (Tr. 6-47)
Despite the evidence in the record, Ms. Trafford argues that the ALJ should have
acquired trigger point testing, a physical examination, and x-rays of her neck and back.
(#11, p. 13) Aside from physical examinations, none of the other objective testing was
ordered by Ms. Trafford’s treating physicians.5 Instead, as noted by the ALJ, it appears
the treating physicians accepted Ms. Trafford’s subjective allegations in lieu of objective
Ms. Trafford had three years from her alleged disability onset until the
administrative hearing to seek or request the objective testing she now argues was needed.
She had another two years from the date of the ALJ’s decision to the Appeals Council’s
denial of review. As far as the record shows, she never sought this testing, which
indicates that the testing would not benefit her cause. See Shannon v. Chater, 54 F.3d
484, 488 (8th Cir. 1995) (the fact that claimant’s counsel did not obtain, or as far as the
record shows, try to obtain, the items claimant complains were not part of the record
suggests that the items had only minor importance). At a minimum, Ms. Trafford has
failed to show any prejudice from the ALJ’s failure to order additional testing.
There is no question, as the ALJ found, that Ms. Trafford’s impairments caused
physical limitations. The evidence in the record, however, is sufficient to support the
Numerous physical examinations completed by Ms. Trafford’s treating
physicians were essentially normal. (Tr. 333, 335, 337, 341, 343, 347, 353, 355, 494,
496, 500, 502, 507, 510, 515, 517)
ALJ’s RFC assessment. There is no evidence or indication that additional testing would
result in a more limited RFC than the limited range of sedentary work found by the ALJ.
Ms. Trafford argues, generally, that the ALJ erred in the weight afforded the
opinion of one of her treating physicians, Melissa Seme, M.D.6 (#11, p. 13-14) Ms.
Trafford does not identify the specific opinion, the weight she believes the ALJ should
have assigned it, or the effect assigning a different weight would have had on the ALJ’s
decision. Instead, Ms. Trafford simply argues that the Court should remand this case
because the ALJ did not specifically assign weight to Dr. Seme’s opinion.
The ALJ discussed Dr. Seme’s treatment records and opinion in her decision. (Tr.
70) The ALJ then stated that she gave substantial weight to the opinions of the treating
and examining physicians. (Tr. 71) The ALJ did not describe the specific weight given
to Dr. Seme’s opinion beyond this general statement.
It is clear from the RFC finding that the ALJ gave substantial weight to the treating
physician opinions, including those of Dr. Seme. It is also clear, however, that the ALJ
declined to give controlling weight to the opinions expressed by Dr. Seme in the Physical
RFC Questionnaire. (Tr. 539-543) There was no error in this decision.
Although not specifically identified by Ms. Trafford, it appears this argument
involves the “Physical Residual Functional Capacity Questionnaire” completed by Dr.
Seme on February 4, 2008. (Tr. 539-543)
Dr. Seme’s Physical RFC Questionnaire is not entitled to controlling weight. See
Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997) (residual functional capacity
checklists, although admissible, are entitled to little weight in the evaluation of disability).
The questionnaire is inconsistent with the medical record and some of Dr. Seme’s own
records. See Finch v. Astrue, 547 F.3d 933, 938 (8th Cir. 2008) (the ALJ may reject the
opinion of any medical expert where it is inconsistent with the medical record as a
For example, Dr. Seme stated that Ms. Trafford could never look up or hold her
head in a static position. (Tr. 542) In an entire eight-hour workday, Dr. Seme noted that
Ms. Trafford could look down or turn her head right or left for a maximum of 24
minutes.7 (Tr. 542) Dr. Seme based her findings exclusively on her observations of Ms.
Trafford’s decreased range of motion and frequent shifting of position during
examinations. (Tr. 539) Numerous physical examinations of Ms. Trafford’s neck,
however, were conducted, and all were normal. (Tr. 333, 335, 337, 341, 343, 353, 355,
496, 500, 507, 510, 517) Examinations by Dr. Seme of Ms. Trafford’s neck were also
normal. (Tr. 549, 551, 553) In fact, just a few days before completing the questionnaire,
Dr. Seme noted no neck complaints or problems whatsoever. (Tr. 549)
Dr. Seme found that Ms. Trafford could “rarely” look down or turn her head right
or left. (Tr. 542) In the questionnaire, “rarely” meant 1% to 5% of an eight-hour
workday. (Tr. 540) That corresponds to approximately 5 to 24 minutes of an eight-hour
In the questionnaire, Dr. Seme also noted severe limitations in the use of hands,
fingers, and arms. (Tr. 543) There is no explanation for these limitations in the medical
record. Ms. Trafford stated that her medications impaired her motor skills and the use of
her hands. (Tr. 157) Dr. Seme, however, noted no problems with Ms. Trafford’s
extremities in her physical examinations. (Tr. 546, 549, 553)
It is clear, as the ALJ found, that Ms. Trafford suffered a number of severe,
limiting impairments. The ALJ’s RFC finding provided a quite limited range of
sedentary work, the lowest possible exertional level of work. In making the RFC
determination, the ALJ adequately discussed and weighed the various medical source
records. The ALJ’s RFC determination accounted for Ms. Trafford’s numerous credible
limitations. Despite the extremely limited RFC, however, a significant number of jobs
existed that Ms. Trafford was capable of performing.
The Court has reviewed all of the evidence in the record, including all of the
medical evidence, the assessment of the consulting physicians, and the hearing transcript.
There is sufficient evidence in the record to support the Commissioner’s determination
that Jennifer Trafford retained the residual functional capacity to perform a significant
number of jobs existing in the national economy. Accordingly, Ms. Trafford’s appeal is
DENIED. The Clerk is directed to close the case.
IT IS SO ORDERED this 26th day of July, 2011.
UNITED STATES MAGISTRATE JUDGE
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