Tillmon v. Social Security Administration

Filing 11

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 12/15/08. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION G L O R I A D. TILLMON v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration 5:08CV00098 BD PLAINTIFF

DEFENDANT

MEMORANDUM OPINION AND ORDER P la in tif f , Gloria D. Tillmon, has appealed the final decision of the Commissioner of th e Social Security Administration to deny her claim for Disability Insurance benefits. Both p a rtie s have submitted appeal briefs, 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 would 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 reverse the Commissioner's decision, however, 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 high blood pressure, fib rom yalg ia, arthritis, neck pain, back pain, burst blood vessels, vision problems, and heart p a lp ita tio n s . (Tr. 89) The Commissioner found that she was not disabled within the m e a n in g of the Social Security Act. The only issue before this Court is whether the C o m m iss io n e r's decision that Plaintiff was not disabled within the meaning of the Act is s u p p o rte d by substantial record evidence. A f te r conducting an administrative hearing, the Administrative Law Judge 1 ("ALJ") c o n c lu d e d that Plaintiff had not been under a disability within the meaning of the Social S e c u rity Act at any time through August 17, 2006, the date of his decision. (Tr. 18) On M arc h 21, 2008, the Appeals Council denied Plaintiff's request for a review of the ALJ's d ec isio n , making the ALJ's decision the final decision of the Commissioner. (Tr. 5-7) Plaintiff then filed her complaint initiating this appeal. (Docket #1) After considering of the re c o rd as a whole, the Court finds that the decision of the Commissioner is supported by s u b s ta n tia l evidence. P la in tif f was 49 years old at the time of the hearing. (Tr. 360) She is a high school g ra d u a te with additional vocational training as a certified nurse's aide, cosmetologist, and c o rre c tio n a l officer. (Tr. 95, 360) She has past relevant work as an inspector, correctional o f f ic e r, factory worker, packer, and machine operator. (Tr. 17, 68-75, 90)

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The Honorable. Robert L. Neighbors. 2

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) (2006). If the claimant is, benefits are denied, regardless of medical condition, age, education or work e x p e rie n c e . Id. at § 404.1520(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). If not, benefits are denied. Id. A "severe" impairment significantly lim its a claimant's ability to perform basic work activities. Id. at § 404.1520(c). S te p 3 involves a determination of whether a severe impairment meets or equals a lis te d impairment. Id., § 404.1520(a)(4)(iii). If so, and the duration requirement is met, b e n e f its 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). This residual functional capacity assessment is u tiliz e d 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). If so, benefits a re 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). If so, benefits are denied; if not, benefits are awarded. Id. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity at any tim e relevant to the decision. (Tr. 13) He found that Plaintiff had a "severe" impairment, f ib ro m ya lg ia . (Tr. 13) He found that she did not have an impairment or combination of

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im p a irm e n ts that met or equaled a Listing. (Tr. 15) He judged that Plaintiff was less than f u lly credible. (Tr. 17) T h e ALJ found that Plaintiff retained the residual functional capacity for light work (T r. 15), and that she was unable to perform any of her past relevant work. (Tr. 17) The A L J applied Plaintiff's vocational profile and the residual functional capacity which he had f o u n d , and established that Rules 202.14 and 202.21, Table No. 2, Appendix 2, Subpart P, R e g u la tio n s No. 4 directed a finding of not disabled. (Tr. 17) Consequently, the ALJ c o n c lu d e d that Plaintiff was not disabled. (Tr. 18) Plaintiff argues that the ALJ erred in his residual functional capacity determination. (Br. 6-7) She points to no record evidence in support of that position, however. Id. She a lle g e d that she became unable to work on February 19, 2001. (Tr. 47, 89) She was in a m o to r vehicle accident in August of 2001. (Tr. 154) On March 19, 2001, Plaintiff was e x a m in e d by Bruce Safman, M.D. (Tr. 152-53) and there were no objective findings on e v a lu a tio n . (Tr. 152) He thought that she could gradually return to work.2 Id. An MRI of th e lumbar spine was negative. (Tr. 303) No abnormality of the lumbar spine was noted af ter the motor vehicle accident. (Tr. 154-55) In June of 2005, Plaintiff was evaluated neurologically by Patricia A. Knott, M.D. (Tr. 324-28) No atrophy was noted to the extremities. (Tr. 326) Plaintiff could heel-andto e walk well. (Tr. 327) Dr. Knott thought the fibromyalgia diagnosis was questionable. Id. "The patient did not have the multiple areas of tender points that you expect to see in f ib ro m ya lg ia ." Id. Dr. Knott completed a Medical Source Statement of Ability to Do Workre la te d Activities (Physical). (Tr. 329) On that assessment, she checked boxes indicating

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Plaintiff testified that she had to lift as much as 60 pounds on that job. (Tr. 363) 4

th a t Plaintiff could frequently3 lift and/or carry up to ten pounds and occasionally,4 eleven to 5 0 pounds; she could sit four hours in an eight-hour workday and stand and/or walk six h o u rs in an eight-hour workday; she had the capacity to use her hands/feet/arms to o c c a sio n a lly grasp, finely manipulate, handle and reach; she could frequently feel objects a n d push/pull/operate controls with her hands and feet. Id. She indicated Plaintiff could o c c a sio n a lly climb, balance, stoop, crouch, kneel or crawl, but that she should avoid all e x p o s u re to heights. Id. She also should avoid moderate exposure to vibrations. Id. She h a d unlimited ability to hear and speak. Id. Substantial evidence supports the ALJ's d e te rm in a tio n that Plaintiff retained the residual functional capacity for light work. Plaintiff's argument seeks to place the burden of proof on the Commissioner, but it is th e claimant's burden, and not that of the Social Security Commissioner, to prove residual f u n c tio n a l capacity. Goff v. Barnhart, 421 F.3d 785,790 (8th Cir. 2005); Eichelberger v. B a r n h a r t, 390 F.3d 584, 591 (8th Cir. 2004); Masterson v. Barnhart, 383 F.3d 731, 737 (8th C ir. 2004); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 2 7 4 F.3d 1211, 1217 (8th Cir. 2001); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2 0 0 0 ); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). Plaintiff also contends that the ALJ's credibility determination was unsupported by c re d ib le evidence and that he erred in discrediting her subjective complaints of pain. (Br. 79 ) The ALJ considered Plaintiff's subjective complaints in light of Polaski v. Heckler, 739 F .2 d 1320 (8th Cir. 1984). (Tr. 15-17) He also cited Social Security Ruling 96-7p and 20 C .F .R . § 404.1529. (Tr. 15) That Ruling tracks Polaski and 20 C.F.R. § 404.1529(c)(3), a n d elaborates on them.

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Defined on the form as one-third to two-thirds of the time. Defined on the form as up to one-third of the time. 5

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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. 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, the lack of more treatment, Plaintiff's daily activities, 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

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re la tin g to subjective complaints, ALJ may discount complaints if there are inconsistencies in evidence as a whole). Plaintiff testified that she could walk "maybe a half block." (Tr. 368) In a Disability S u p p le m e n ta l Interview Outline dated January 21, 2003 (Tr. 67), however, Plaintiff in d ic a te d that she groomed without assistance, although she often cut herself if she shaved; d id laundry and dishes; changed sheets; ironed; vacuumed or swept; and took out the trash. She attempted home repairs, washing the car, mowing, raking leaves and garden work. In a d d itio n , she shopped for groceries, and sometimes clothes, and completed postal and b a n k in g errands (Tr. 63); she prepared meals three times a week for two hours, including s a n d w ic h e s, frozen dinners, meats and vegetables; paid bills, used a checkbook and counted c h a n g e; drove and walked for exercise; attended church; watched television; listened to the ra d io ; read; and visited friends and relatives (Tr. 64). Plaintiff engaged in extensive daily a c tiv itie s, which is inconsistent with the level of pain and limitation alleged. See Roberson v . Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007)(plaintiff cared for eleven-year-old daughter, d ro v e her to school, drove elsewhere, fixed simple meals, did housework, shopped for g ro c e rie s and had no trouble handling money); Pelkey v. Barnhart, 433 F.3d 575, 578 (8th C ir. 2006)(plaintiff performed household chores, mowed the lawn, raked leaves, shopped for g ro c e rie s and drove a car); Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir. 2004)(plaintiff a tte n d e d college classes and church, shopped for groceries, ran errands, cooked, drove, w a lk e d for exercise and visited friends and relatives); Haley v. Massanari, 258 F.3d 742, 7 4 8 (8th Cir. 2001)(plaintiff took care of personal needs, washed dishes, changed sheets, v a c u u m e d , washed cars, shopped, cooked, paid bills, drove, attended church, watched tele v isio n , listened to radio, read and visited friends and relatives); Gray v. Apfel, 192 F.3d 7 9 9 , 804 (8th Cir. 1999)(plaintiff cared for himself, did household chores, drove short d ista n c e , performed other miscellaneous activities); Haggard v. Apfel, 175 F.3d 591, 594 7

(8 th Cir. 1999)(plaintiff cooked some meals, watered flowers around house, helped wife p a in t, watched television, went out for dinner, occasionally drove and occasionally visited w ith friends); Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)(plaintiff dressed and b a th e d herself, did some housework, cooking and shopping); Pena v. Chater, 76 F.3d 906, 9 0 8 (8th Cir. 1995)(daily caring for one child, driving when unable to find ride and so m e tim e s going to grocery); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1995)(visiting n e ig h b o rs, cooking own meals, doing own laundry and attending church); Novotny v. C h a te r, 72 F.3d 669, 671 (8th Cir. 1995)(carrying out garbage, carrying grocery bags, d riv in g wife to and from work inconsistent with extreme, disabling pain); Shannon v. C h a te r, 54 F.3d 484, 487 (8th Cir. 1995)(plaintiff cooked breakfast, sometimes needed help w ith household cleaning and other chores, visited friends and relatives and attended church tw ice a month); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)(plaintiff lived alone, d rov e, shopped for groceries and did housework with some help from neighbor). T h e 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 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 contends that she was entitled to a finding of disability based on R u le 201.14 of the Medical-Vocational Guidelines. (Br. 9-10) Rule 201.14 is appropriate w h e n a claimant has the residual functional capacity for no more than sedentary work. Rule 2 0 1 .1 4 , Table No. 1, Appendix 2, Subpart P, Regulations No. 4. The ALJ found that P la in tif f was capable of light work, and the Court has already determined that this finding w a s supported by substantial evidence. Plaintiff's argument lacks merit. 8

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 Reutter e x 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. D A T E D this 15th day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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