Gilmore v. Social Security Administration

Filing 15

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 3/4/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION

P A M E L A D. GILMORE v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration M E M O R A N D U M OPINION AND ORDER 5 :0 8 C V 0 0 0 1 4 BD

P L A IN T IF F

DEFENDANT

P la in tif f , Pamela D. Gilmore, has appealed the final decision of the Commissioner of th e Social Security Administration to deny 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. Long v. C h a te r, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial ev iden ce is such relevant evidence 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 2 5 4 , 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d etracts 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).

" D is a b ility" 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). A "physical or mental impairment" is "an im p a irm e n t that results from anatomical, physiological, or psychological abnormalities w h ich are demonstrable by medically acceptable clinical and laboratory diagnostic tech n iqu es. " 42 U.S.C. § 423(d)(3). P la in tif f alleged that she was limited in her ability to work by carpal tunnel syndrome, rh e u m a to id arthritis, fibromyalgia, and high blood pressure. (Tr. 75) The Commissioner f o u n d that she was not disabled within the meaning of the Social Security Act. The only is s u e before this Court is whether the Commissioner's decision that Plaintiff was not d is a b le d within the meaning of the Act is supported by substantial record evidence. A fter conducting an administrative hearing at which Plaintiff and a vocational expert te stif ie d , the Administrative Law Judge 1 ("ALJ") concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act at any time from July 27, 2005,2 th ro u g h October 9, 2007, the date of his decision. (Tr. 19) On December 18, 2007, the A p p e a ls Council denied Plaintiff's request for a review of the ALJ's decision, making the A L J 's decision the final decision of the Commissioner. (Tr. 4-6) Plaintiff then filed her c o m p la in t initiating this appeal. (Docket #2) A f te r consideration of the record as a whole, the Court finds that the decision of the C o m m is s io n e r is supported by substantial evidence.

1

The Hon. David J. Manley.

The date of an ALJ's adverse decision on a previous application. (Tr. 13) That decision w a s ultimately appealed to this Court, which affirmed. Gilmore v. Astrue, 5:06CV00080 SWW (Jud g m en t, Sept. 17, 2007). 2

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P la in tif f was 42 years old at the time of the hearing in this case. (Tr. 333) She had c o m p l e te d the eighth grade in school. (Tr. 79, 208, 334) She has past relevant work as a c a sh ie r and as an assembler. (Tr. 18, 57-63, 76-77, 81-82) T h e ALJ considered Plaintiff's impairments by way of the required five-step s e q u e n tia l evaluation process. The first step involves a determination of whether the claim an 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 has an impairment or c o m b in a tio n of impairments which is "severe" and meets the duration requirement. Id. at § § 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If not, benefits are denied. Id. A "severe" im p a irm e n t significantly limits a claimant's ability to perform basic work activities. Id. at § § 404.1520(c); 416.920(c). S tep 3 involves a determination of whether the severe impairment(s) meets or equals a listed impairment. Id., §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If so, and the duration re q u ire m e n t is met, benefits are awarded. Id. If the claimant does not meet or equal a Listing, then a residual functional capacity a s s e s s m e n t is made. Id., §§ 404.1520(a)(4); 416.920(a)(4). This residual functional c a p a c ity assessment is utilized at Steps 4 and 5. Id. S te p 4 involves a determination of 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.,

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§ § 404.1520(a)(4)(v); 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are a w a rd e d . Id. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since her e a rlie st possible alleged onset date. (Tr. 14) He found that Plaintiff had a "severe" im p a irm e n t, fibromyalgia. Id. He determined that she did not have an impairment or c o m b in a tio n of impairments that met or equaled a Listing. (Tr. 17) He judged that P la in tif f 's allegations regarding her limitations were not totally credible. Id. The ALJ found that Plaintiff retained the residual functional capacity to perform a f u ll range of light work. (Tr. 18) He found that she was able to perform her past relevant w o rk as a cashier. Id. Thus, the ALJ concluded that Plaintiff was not disabled. Id. P la in tif f argues that the ALJ's finding that she could perform a full range of light w o rk is not supported by substantial evidence. (Br. 7-11) Plaintiff contends that he should h a v e included restrictions related to her chronic shoulder problems in the residual functional c a p ac ity. (Br. 9) Plaintiff did not contend that she was limited in her ability to work by s h o u ld e r problems. (Tr. 75) Syed Ashfaq Hasan examined Plaintiff's shoulder in October o f 2006. (Tr. 234-36) Physical examination revealed no obvious muscle atrophy. (Tr. 235) She had full overhead elevation with a somewhat painful arc. Id. He reviewed her MRI and to ld her that her rotator cuff appeared to be healed and that there was no need for surgical interve n tio n . (Tr. 239) She also contends that the ALJ should have incorporated limited use of her hands in the residual functional capacity. (Br. 9) Eleanor A. Lipsmeyer, M.D., was Plaintiff's tre a tin g rheumatologist. Dr. Lipsmeyer noted that Plaintiff had a full range of motion in all joints. (Tr. 220) Plaintiff also had good grip and curl of the hands. (Tr. 133, 137, 220) Randy R. Bindra, M.D., examined her in October of 2006. (Tr. 247-50) At that time, P la in t if f had full range of motion in the right wrist. (Tr. 249) There was no motor weakness 4

in the right hand. Id. She showed "several inappropriate signs" when tested for carpal tu n n e l syndrome on the right and on the left. T h e ALJ must determine the claimant's residual functional capacity based on all r e le v a n t evidence, including medical records, observations of treating physicians and others, a n d claimant's own descriptions of her limitations. Tellez v. Barnhart, 403 F.3d 953, 957 (8 th Cir. 2005); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. M a s s a n a r i, 274 F.3d 1211, 1217 (8th Cir. 2001). The ALJ's residual functional capacity d e te rm in a tio n was supported by substantial evidence. N e x t, Plaintiff contends that the ALJ improperly discounted her credibility. (Br. 111 3 ) The ALJ considered Plaintiff's subjective complaints in light of Polaski v. Heckler, 739 F .2 d 1320 (8th Cir. 1984).3 (Tr. 16-17) 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 st give full consideration to all of the evidence presented relating to s u b je c tiv e complaints, including the claimant's prior work record, and o b se rv a tio n s by third parties and treating and examining physicians relating to s u c h matters as: 1 . the claimant's daily activities; 2 . the duration, frequency and intensity of the pain; 3 . precipitating and aggravating factors; 4 . dosage, effectiveness and side effects of medication; 5 . functional restrictions.

The ALJ also cited Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529 and 416.929. (T r . 16) That Ruling tracks Polaski and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and e la b o ra te s on them. 5

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T h e adjudicator is not free to accept or reject the claimant's subjective c o m p lain 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 s u p p o rt of Plaintiff's allegations, Plaintiff's daily activities, her variable work record, her f u n c tio n a l capabilities and the lack of restriction placed on Plaintiff by her physicians, the A L J could rightly discount Plaintiff's subjective complaints. See, e.g., Guilliams v. B a r n h a r t, 393 F.3d 798, 801 (8th Cir. 2005) (ALJ may discount subjective complaints if th e re are inconsistencies in the record as a whole); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may discount complaints inconsistent with the evidence as a whole); D o d s o n v. Chater, 101 F.3d 533, 534 (8th Cir. 1996) (after full consideration of all evidence re la tin g to subjective complaints, ALJ may discount complaints if there are inconsistencies in evidence as a whole). Plaintiff told a physician that she exercised weekly, walking and doing sit-ups. (Tr. 2 4 9 ) She washed dishes and cleaned. (Tr. 360) She testified that she had five g ra n d c h ild re n that she saw every other day. (Tr. 344) She kept three of them for three-tofo u rs hours at a time; her daughter paid her for babysitting. (Tr. 344) 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. E.g., Shelton v. Chater, 8 7 F.3d 992, 995 (8th Cir. 1996); Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Hall v. Chater, 62 F.3d 220, 224 (8th Cir. 1995). His credibility findings are entitled to 6

d e f e re n c e as long as they are supported by good reasons and substantial evidence. Gregg v. B a r n h a r t, 354 F.3d 710, 714 (8th Cir. 2003). Finally, Plaintiff argues that the ALJ failed to develop the record regarding her d o c u m e n ted mental impairment. (Br. 13-14) There is evidence in the record that reflects that Plaintiff was seen by a social worker at Southeast Arkansas Behavioral Healthcare S ys te m , Inc., from April to December, 2006. (Tr. 196-207) She was seen once, June 14, 2 0 0 7 , by Gary Wooten, M.D., a psychiatrist. (Tr. 208-09) Plaintiff emphasizes that Dr. W o o te n gave her a GAF (Global Assessment of Functioning) of 45. (Br. 14) A GAF does n o t have a direct correlation to the severity requirements in mental disorders listings. 65 F e d .R e g . 50746, 50764-65 (2000). Dr. Wooten diagnosed major depressive disorder, single e p is o d e , moderate to severe, and prescribed medication. (Tr. 209) A first-time diagnosis or a single complaint, without consideration of the effects of prescribed medications or s u b s e q u e n t treatment, is an insufficient basis for inclusion in the hypothetical question. Plaintiff asserts that the ALJ erred by not completing a Psychiatric Review Technique F o r m . (Br. 14) The standardized form is now used only at the initial and reconsideration le v e ls ; at the ALJ hearing and Appeals Council levels, documentation of the application of p s yc h ia tric review technique is in the decision itself, rather than on a separate form. 20 C .F .R . §§ 404.1520a(e), 416.920a(e) (2007). The ALJ properly documented the application o f the psychiatric review technique in his decision. (Tr. 17, 19) P lain tiff bears a heavy burden in showing the record has been inadequately d e v e lo p e d ; she must show both a failure to develop necessary evidence and unfairness or p re ju d ic e from that failure. Combs v. Astrue, 243 Fed.Appx. 200, 204 (8th Cir. 2007); R o b in s o n v. Astrue, 2008 WL 312034 (E.D. Ark.). It is of some relevance that Plaintiff's a tto rn e y did not obtain, or, as evidenced by the record, try to obtain, the items which P la in tif f now complains are not in the record. Onstad v. Shalala, 999 F.2d 1232, 1234 (8th 7

C ir. 1993). Plaintiff has not demonstrated that she was prejudiced or treated unfairly by the m a n n e r in which the ALJ did or did not develop the record. Id. The ALJ is permitted to iss u e a decision without obtaining additional evidence as long as the record is sufficient to m a k e an informed decision. E.g., Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001); A n d e rs o n v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). In this case, the record was su f f icie n t. 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 sc 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 t te r ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d ec isio n is not based on legal error. T H E R E F O R E , the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED, this 4th day of March, 2009.

UNITED STATES MAGISTRATE JUDGE

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