Harris v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision and dismissing Plaintiff's Complaint with prejudice. Signed by Magistrate Judge J. Thomas Ray on 6/8/12. (hph)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
NO. 4:11CV00632 JTR
MICHAEL J. ASTRUE,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff, Consuella Harris, has appealed the final decision of the Commissioner
of the Social Security Administration denying her claim for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI). Both parties have filed
Appeal Briefs (docket entries #16, #17), and the issues are now joined and ready for
The Commissioner’s denial of benefits must be upheld upon judicial review if
the decision is supported by substantial evidence in the record as a whole. Moore v.
Astrue, 623 F.3d 599, 602 (8th Cir. 2010); see 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “relevant evidence which a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.” Moore, 623 F.3d at 602. In its
review, the Court should consider evidence supporting the Commissioner’s decision
as well as evidence fairly detracting from it. Id. Nevertheless, if it is possible to draw
two inconsistent conclusions from the evidence and one of these conclusions
represents the Commissioner's findings, the denial of benefits must be affirmed. Id.
On March 10, 2009, Plaintiff protectively filed applications for DIB and SSI,
alleging an onset date of January 26, 2009. (Tr. 121-40, 158.) She reported that she
was unable to work due to bipolar disorder, manic depression and paranoid
schizophrenia. (Tr. 162.) She said she was 5'7" and weighed 310 pounds. (Tr. 161.)
She was twenty-seven years old at the time of her applications, and had completed
high school. (Tr. 158, 167.) She worked as a manager in a fast food restaurant from
2003 until January 2009. (Tr. 163.) She also had past work as a fast food crew
person, and as a cashier in a gas station. (Tr. 169.)
After Plaintiff’s claims were denied at the initial and reconsideration levels, she
requested a hearing before an Administrative Law Judge (ALJ). On March 24, 2010,
the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. (Tr.
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) &
(b), 416.920(a)(4)(i) & (b). If the claimant is, benefits are denied, regardless of
medical condition, age, education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). If not, benefits are
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).
If so, and the duration requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient residual
functional capacity (RFC), despite the impairment(s), to perform the physical and
mental demands of past relevant work.
Id. §§ 404.1520(a)(4)(iv) & (f),
416.920(a)(4)(iv) & (f). If so, benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given the claimant’s RFC, age, education and work
experience. Id. §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g). If so, benefits are
denied; if not, benefits are awarded. Id.
In his May 20, 2010 decision (Tr. 10-19), the ALJ found that Plaintiff: (1) had
not engaged in substantial gainful activity since January 26, 2009, her alleged onset
date; (2) had “severe” impairments consisting of obesity, peripheral edema, polycystic
ovarian syndrome (PCOS), bipolar disorder, anxiety disorder NOS, and personality
disorder; (3) did not have an impairment or combination of impairments that met or
medically equaled a listed impairment; (4) had the RFC to perform work at the light
exertional level, but was limited to work where: interpersonal contact is routine but
superficial; the complexity of tasks is learned by experience, with several variables
and judgment within limits; and the supervision required is little for routine tasks but
detailed for non-routine tasks; (5) was not credible regarding the intensity, persistence
and limiting effects of her symptoms; and (6) was able to perform her past relevant
work as a fast food worker. Thus, the ALJ ended his analysis at Step 4, concluding
that Plaintiff was not disabled.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby making it the final decision of the Commissioner. (Tr. 1-3.)
Plaintiff then appealed the denial of benefits to this Court (docket entry #1).
Plaintiff argues that the ALJ erred: (1) in failing to fully consider all her alleged
physical and mental impairments and their combined effect; (2) in failing to properly
evaluate the credibility of her subjective complaints regarding her physical symptoms;
(3) in inadequately assessing the physical and mental demands of her past work; and
(4) in concluding that she had the RFC to perform a wide range of light work. For the
reasons discussed below, the Court concludes that Plaintiff’s arguments are without
Failure to Consider All of Plaintiff’s Impairments and Their Combined
Plaintiff alleges that the ALJ: (1) “disregarded” or failed to properly address
evidence of her diabetes mellitus, hypertension, fatigue, difficulty sleeping, difficulty
concentrating, and schizoaffective disorder; and (2) “sidestepped” the requirement that
he consider the combined effect of all her physical and mental impairments. (Docket
entry #16, at 12-13, 17-18.)
As discussed, the ALJ found that Plaintiff had “severe” physical impairments
of obesity, peripheral edema, and PCOS, and “severe” mental impairments of bipolar
disorder, anxiety disorder, and personality disorder. (Tr. 12.) His decision shows that
he considered the additional impairments cited by Plaintiff.
First, the ALJ specifically addressed Plaintiff’s allegations of diabetes and
hypertension, finding that neither was a “medically determinable impairment.” (Tr.
As the ALJ accurately noted, the records did not contain medical evidence
consisting of signs, symptoms and laboratory findings to support a diagnosis of
diabetes.1 See 20 C.F.R. §§ 404.1508, 416.908. He nevertheless went on to discuss:
(1) the fact that Plaintiff’s physician, Adam Maass, M.D., prescribed Metformin in
September 2008 and stated that it was “for her PCOS” but “hopefully ... [would] help
to decrease her chances of getting diabetes” (Tr. 12, 16, 240); (2) her May 2009 report
to a consultative psychologist, Terry L. Efird, Ph.D., that she was prescribed
medication for diabetes (Tr. 17, 252); and (3) her hearing testimony in March 2010
that she had difficulty regulating her blood sugar, and that the fluctuations made her
weak and tired even with medication (Tr. 15, 35-36).
Regarding hypertension, the ALJ noted: (1) Plaintiff’s hearing testimony that
she experiences swelling in her legs, which she attributed to hypertension (Tr. 13, 15,
36-37); (2) normal blood pressure readings in September 2008 and January 2009 (Tr.
13, 239, 243); (3) Dr. Maass’s prescription of Aldactone (spironolactone) to relieve
the edema and improve her PCOS symptoms (Tr. 13, 16, 240); and (4) her report to
Dr. Efird that she was prescribed hypertension medication (Tr. 17, 252).
There is no medical evidence that Plaintiff was ever diagnosed with diabetes or
prescribed any diabetic medication for the express purpose of controlling the level of her
blood glucose. In fact, her medical records fail to contain a single notation indicating her
blood glucose level or any specific complaints to her doctors about fluctuating glucose
levels, or whether she needed any medication for that problem. While Metformin is
generally prescribed to control high blood sugar in patients with type 2 diabetes, it may
also be used – as was explicitly stated by Dr. Maass – to prevent diabetes in people who
are at high risk for becoming diabetic, as well as to treat PCOS. WebMD,
http://www.webmd.com (follow “Drugs & Supplements,” then “Metformin Oral,” then
“Uses”) (last visited May 31, 2012).
Next, the ALJ explicitly noted Plaintiff’s hearing testimony that she was restless
at night and had difficulty sleeping, and was “weak and tired” on a daily basis. (Tr.
15, 36, 43.)
In discussing Plaintiff’s mental impairments, the ALJ specifically found that
she had “moderate” difficulties with regard to concentration, persistence or pace. (Tr.
14.) He stated that this conclusion was based on Dr. Efird’s observation that Plaintiff
had the capacity to cope with the typical mental and cognitive demands of basic worklike tasks, appeared able to track and respond adequately for purposes of the
consultative evaluation, and showed “no remarkable problems” with attention,
concentration, persistence or pace. (Tr. 254-55.) The ALJ also cited Plaintiff’s
testimony that she did not think she could stay focused well enough to drive and that
her concentration was interrupted by the voices she hears. (Tr. 15, 42-43.)
Finally, the ALJ noted that a psychiatrist in April 2009 had diagnosed Plaintiff
with “schizoaffective bipolar disorder.” (Tr. 16, 288.) The ALJ also noted (1)
Plaintiff’s reports to examining mental health providers of visual and auditory
hallucinations and “hearing noises and seeing images” (Tr. 16-17, 226, 251, 279, 284,
287-88, 290); and (2) her report that those symptoms improved with medication (Tr.
16, 252, 290).
The ALJ’s decision also shows that he applied the proper regulatory framework
and considered the combined effect of Plaintiff’s “severe” impairments, as well as
those he did not find to be severe.
He correctly stated that he had to consider, at Step 2 of the sequential process,
whether Plaintiff had a severe impairment or a “combination of impairments” that was
severe, and he expressly found that her impairments were severe “because, singly, and
in combination,” they significantly limited her ability to perform basic work activities.
(Tr. 11, 12.)
At Step 3, the ALJ correctly stated that he had to consider whether her
impairment or “combination of impairments” met or medically equaled the criteria of
a listed impairment. (Tr. 11.) He expressly found that she did not have “an
impairment or combination of impairments” that met listing criteria. (Tr. 13.)
At Step 4, the ALJ also noted that he had to consider, in assessing Plaintiff’s
RFC, “all of [her] impairments, including impairments that are not severe” (Tr. 11),
and repeatedly stated that he was considering “all the evidence” and “the entire
record” in making his findings, including his RFC determination. (Tr. 10, 12, 14, 15,
Finally, the ALJ expressly stated that he was evaluating Plaintiff’s obesity in
compliance with the governing ruling, SSR 02-1p, which requires the consideration
of the “combined effects of obesity with other impairments.” (Tr. 13, 16.) See SSR
02-1p, 2000 WL 628049, at *1, *3-*7 (Sept. 12, 2002).
Thus, in his decision, the ALJ clearly considered all of Plaintiff’s physical and
mental conditions in combination.
Failure to Properly Assess Plaintiff’s Credibility Regarding Her Physical
Plaintiff argues that, even though her testimony was supported by medical
evidence, the ALJ disregarded her subjective complaints of pain due to her obesity,
peripheral edema, PCOS and headaches, and “appears to have allowed personal
observations of her” to have influenced his judgment. (Docket entry #16, at 13-14.)
An ALJ may discount a claimant’s subjective allegations if they are inconsistent
with the record as a whole. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984);
see 20 C.F.R. §§ 404.1529(c), 416.929(c) (listing factors to consider);2 SSR 96-7p,
1996 WL 374186 (July 2, 1996).
The ALJ cited the relevant regulatory authority, and he explicitly found that
Plaintiff’s statements concerning “the intensity, persistence and limiting effects of her
symptoms” were not credible to the extent they were inconsistent with his RFC
As stated in this regulation, the ALJ is required to consider, in addition to the
objective medical evidence and the claimant’s prior work record, statements and
observations made by the claimant, his or her medical providers and any others regarding
(1) the claimant’s daily activities, (2) the location, duration, frequency and intensity of
pain or other symptoms, (3) precipitating and aggravating factors, (4) type, dosage,
effectiveness and side effects of medications, (5) non-medication treatments or other
measures taken to alleviate pain and symptoms, and (6) functional limitations.
assessment. (Tr. 15.) His decision makes it clear that, before discounting the
credibility of her complaints regarding her physical symptoms, he took into account
matters such as: (1) her hearing testimony and statements to medical providers
regarding her symptoms and limitations (Tr. 15-16); (2) her daily performance of
household chores, childcare, and other activities (Tr. 15, 18); (3) Plaintiff’s medical
appointments in September 2008 and January 2009 where treatment was provided for
her PCOS, weight gain, and swelling in her legs (Tr. 15-16, 239-45); (4) the
medications prescribed; (5) the absence of any other significant medical evidence
regarding her physical health3 (Tr. 16); (6) the fact that none of the doctors caring for
her physical health assigned any limitations (Tr. 17); (7) Dr. Efird’s observation
regarding the “possibility of symptom exaggeration”4 (Tr. 17, 18); and (8) statements
from Plaintiff’s mother and stepfather (Tr. 17-18, 215, 217). Notably, Plaintiff
alleged no physical impairments in her initial disability application, answered “does
not apply” to the questions about pain in a disability questionnaire in March 2009, and
identified no physical abilities that were affected by her medical conditions. (Tr. 162,
The ALJ noted Plaintiff’s testimony that she had difficulty getting in touch with a
low cost/no cost clinic. (Tr. 16.) Plaintiff testified that she had tried to call only one
clinic, but “they’re never there.” (Tr. 34, 44-45.)
Dr. Efird questioned Plaintiff’s reports that she had gained forty pounds in the
prior two weeks and that she had experienced suicidal ideation on a daily basis for most
of her life. (Tr. 251, 254, 255.)
Nothing in the ALJ’s decision refers to his personal observation of Plaintiff or
her demeanor at the hearing. Nonetheless, such observations are an appropriate factor
in a credibility determination. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008).
Finally, the ALJ’s decision shows that he credited Plaintiff’s subjective physical
complaints to some degree, stating that, despite the lack of medical evidence, he had
given her “the benefit of the doubt and taken her reported limitations in consideration”
by “limiting her to the performance of light exertional work.” (Tr. 17.)
After reviewing the complete record, the Court concludes that the ALJ properly
evaluated Plaintiff’s credibility regarding her physical complaints.
Failure to Properly Evaluate Plaintiff’s Past Work.
Plaintiff next argues that the ALJ’s conclusion that she could return to her past
work as a fast food worker is “flawed” because the ALJ failed to accurately determine
and make precise findings regarding the physical and mental demands of that work.
(Docket entry #16, at 15.)
In evaluating past work, an ALJ may properly consider information provided
by the claimant, and may utilize the services of vocational experts and other resources
such as the Dictionary of Occupational Titles (DOT). 20 C.F.R. §§ 404.1560(b)(2),
416.960(b)(2); see Wagner v. Astrue, 499 F.3d 842, 853-54 (8th Cir. 2007) (ALJ
properly relied on vocational expert’s testimony in assessing functional demands and
job duties of past work).
In connection with the disability application process in this case, Plaintiff
completed forms listing her past jobs and describing the exertional and skill demands
of those jobs. (Tr. 163, 169-76.) At the administrative hearing, the ALJ asked
Plaintiff about her specific physical duties as a crew-member and as manager at a fast
food restaurant, as well as some mental aspects of the jobs. (Tr. 30-33, 41-42.) The
vocational expert, who had been present during Plaintiff’s testimony, testified that he
had sufficient information about Plaintiff’s past work to classify it in terms of
exertional and skill levels. (Tr. 47-48.) The expert identified Plaintiff’s past work as
a “fast food services manager” and a “fast food worker,” as described in the DOT, and
further stated that his testimony was consistent with information found in the DOT.
(Tr. 48-51.) See DOT §§ 185.137-010, 311.472-010. Finally, the expert testified that
an individual with the limitations described by the ALJ could perform work as a fast
food worker. (Tr. 49.)
In his decision, the ALJ found that Plaintiff’s past job as a fast food worker was
“light exertional level, unskilled work.” (Tr. 18.) He further stated that, “[i]n
comparing the claimant’s [RFC] with the physical and mental demands” of this past
work, “and considering the testimony of the vocational expert at the hearing,” Plaintiff
was able to perform the job as a fast food worker “as actually and generally
performed.” (Tr. 18.)
This record reflects a sufficient analysis of Plaintiff’s past work.
Failure to Properly Assess Plaintiff’s RFC.
Plaintiff argues that the ALJ erred in determining that she had the RFC for a
wide range of light work because: (1) the mental RFC assessment omitted her inability
to handle work stresses, her schizoaffective disorder, and her difficulty concentrating;
(2) the physical RFC assessment omitted her difficulty sleeping, swelling in her legs,
and fatigue; (3) the ALJ failed to procure a general physical examination or physical
RFC findings from a physician to determine the extent and limiting effects of her
physical impairments; and (4) the ALJ failed to properly consider whether Plaintiff
was able to work in the “real world” on a regular and sustained basis. (Docket entry
#16, at 13, 15-18.)
The ALJ bears the primary responsibility for assessing a claimant's RFC at Step
4 of the sequential evaluation, based on all relevant evidence, including medical
records, observations and opinions of treating physicians and others, and the
claimant's own descriptions of his or her limitations. 20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3). However, a claimant's RFC is a medical question and “at least some”
medical evidence must support the ALJ's RFC determination. Wildman v. Astrue, 596
F.3d 959, 969 (8th Cir. 2010).
Here, the ALJ’s decision shows that, in making his physical and mental RFC
assessments, he specifically considered: (1) the relevant medical evidence, including
all physician opinions in the record; (2) Plaintiff’s hearing testimony and reports to
medical providers regarding her limitations and symptoms; and (3) the extent of her
daily activities. (Tr. 14-18.) He was entitled to exclude from the RFC subjective
allegations that he found were not credible. See Wildman, 596 F.3d at 969.
The ALJ discussed at length what he described as “the mental component” of
Plaintiff’s case and said he was factoring any limiting effects into his RFC assessment.
(Tr. 13-14, 16-18.) He specifically cited the following supporting medical evidence:
(1) Plaintiff’s reported “long history” of psychiatric treatment and diagnoses of mental
illness; (2) a March 4, 2009 hospital admission after an apparent suicide attempt, and
the provision of psychotropic medications and psychotherapy at that time (Tr. 22436); (3) follow-up visits to mental health clinics on March 11, April 14 and 27, and
June 1, 2009 (Tr. 222, 279-91); (4) her reports that the medications were helping and
her symptoms had improved (Tr. 252, 290); (5) Dr. Efird’s diagnostic evaluation in
May 2009, in which he concluded that Plaintiff’s mental symptoms did not severely
impair her adaptive functioning (Tr. 251-55); (6) Dr. Efird’s assessment of a GAF
score of 55-65, indicating mild to moderate symptoms5 (Tr. 254); and (7) the fact that
Plaintiff did not take any psychiatric medications or receive any mental health services
from 2000 to March 2009, yet was able to work full-time (Tr. 252, 254). The ALJ
also noted Plaintiff’s testimony that she quit work in January 2009, when her
grandmother became ill and she could not get sufficient time off from work to care for
her. (Tr. 17, 33, 42.) See Goff v. Barnhart, 421 F.3d 785, 792-93 (8th Cir. 2005)
(claimant's ability to work in the past with alleged impairments demonstrates they are
not presently disabling; relevant factor is whether claimant leaves work for reasons
other than medical condition).
As discussed above, the ALJ recited the limited medical evidence regarding
Plaintiff’s physical symptoms and accounted for some limitations in his physical RFC
assessment by restricting her to work at the light exertional level. Plaintiff did not
allege any physical impairments in her disability application, and none of her treating
physicians imposed any physical restrictions. In addition, on March 4, 2009, a general
physical examination was performed when Plaintiff was admitted to the hospital
following a suicide attempt. All physical findings were normal, and Plaintiff had no
See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders 32-33 (4th ed., Text Rev. 2000) (GAF of 51-60 indicates the individual has
"[m]oderate symptoms ... or moderate difficulty” in social, occupational, or school
functioning; a GAF of 61 to 70 represents "mild" symptoms or "some difficulty").
edema in her extremities, had full range of motion, and had normal station, gait and
ambulation. (Tr. 226-28.) This constitutes sufficient medical evidence to support the
physical RFC determination. The ALJ need not order a medical examination if the
medical records provide sufficient evidence to determine whether the claimant is
disabled. Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011).
Finally, the ALJ expressly recognized that RFC is an individual's "ability to do
physical and mental work activities on a sustained basis despite limitations from her
impairments." (Tr. 11) (emphasis added). By definition, RFC is a measure of a
claimant's ability to perform work on a “regular and continuing” basis. 20 C.F.R. §§
404.1545(b) & (c), 416.945(b) & (c).
The ALJ’s RFC assessment clearly
contemplates the effect that a “real world” work environment would have on
Plaintiff’s ability to function, including limitations on the amount of interpersonal
contact, complexity of tasks, and level of supervision. (Tr. 14.) It was unnecessary
for the ALJ to make any further specific findings in this regard. See McCoy v. Astrue,
648 F.3d 605, 617 (8th Cir. 2011).
After a careful review of the entire record and all arguments presented, the
Court finds that Plaintiff's arguments for reversal are without merit and that the record
as a whole contains substantial evidence upon which the ALJ could rely in reaching
his decision. The Court further concludes that the ALJ’s decision is not based on legal
IT IS THEREFORE ORDERED THAT the final decision of the Commissioner
is affirmed and Plaintiff’s Complaint is DISMISSED, WITH PREJUDICE.
DATED THIS 8th DAY OF June, 2012.
UNITED STATES MAGISTRATE JUDGE
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