Roberts v. Social Security Administration

Filing 27

MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 7/7/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION K E N N E T H ROBERTS V. NO. 5:08CV00165-BD PLAINTIFF

M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration

DEFENDANT

M E M O R A N D U M OPINION AND ORDER P la in tif f Kenneth Roberts has appealed the final decision of the Commissioner of th e Social Security Administration (the "Commissioner") denying his claim for Disability In s u ra n c e benefits ("DIB") under Title II of the Social Security Act (the "Act") and S u p p le m e n ta l Security income ("SSI") under Title XVI of the Act. I. B ackground: P la in tif f was thirty-nine years old at the time of the hearing, making him a " yo u n g e r individual" under 20 C.F.R. 404.1563. (Tr. 846) He had an eighth grade e d u c a tio n and past work experience as a saw operator, which the vocational expert (" V E " ) classified as semi-skilled, medium-to-heavy work. (Tr. 870) At the time of the h e a rin g , Plaintiff was living with this mother, brother, and his brother's wife. (Tr. 867) In his application, Plaintiff claimed disability due to diabetes mellitus. (Tr. 20) At th e hearing before the Administrative Law Judge ("ALJ"), Plaintiff testified that he s u f f e re d from physical limitations due to high blood pressure, asthma, neuropathy, chest

1

pain, insulin-dependent diabetes, lower back pain, ankle pain, vision problems in his left e ye , pain in his left shoulder, and acid reflux. (Tr. 847-59) II. A L J 's Decision: T h e ALJ followed the required five-step sequence to determine: (1) whether the c la im a n t was engaged in substantial gainful activity; (2) if not, whether the claimant had a s e v e re impairment; (3) if so, whether the impairment (or combination of impairments) m e t or equaled 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 past relevant work; and (5) if so, whether the im p a irm e n t (or combination of impairments) prevented the claimant from performing any o th e r jobs available in significant numbers in the national economy. 20 C.F.R. § 404.1520(a)-(g) (2005), 416.920(a)-(g) (2005). The ALJ found that Plaintiff had not engaged in substantial gainful activity, and th a t he suffered from severe impairments including: hypertension; type II diabetes m e llitu s ; diabetic neuropathy of lower extremities; gastroesophageal reflux disease (" G E R D " ); asthma; degenerative joint disease of the spine; status post right lateral lig a m e n t reconstruction and osteochondritis dissecans debridement and drilling; status p o s t resection of right sural nerve; and bilateral elbow pain and numbness. (Tr. 13A) Plaintiff did not suffer from a "listed" impairment, or combination of impairments, a c c o rd in g to the ALJ's findings. (Tr. 13) The ALJ determined that Plaintiff did not have

2

the residual functional capacity ("RFC") to perform his past relevant work. (Tr. 16) He f o u n d , based on the testimony of a VE, however, that there were a significant number of jo b s in the national economy which Plaintiff could perform. (Tr. 17) III. A n a ly sis : A. S ta n d a r d of Review

In reviewing the Commissioner's decision, this Court must determine whether th e re is substantial evidence in the administrative record to support the decision. 42 U .S .C . § 405(g). "Substantial evidence is evidence that a reasonable mind would find a d e q u a te to support the ALJ's conclusion." Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2 0 0 7 ). In reviewing the record as a whole, the Court "must consider the evidence which d e tra c ts from the Commissioner's decision, as well as the evidence in support of the d e c is io n ," but the decision cannot be reversed, "simply because some evidence supports a c o n c lu s io n other than that of the Commissioner." Pelkey v. Barhart, 433 F3d 575, 578 (8 th Cir. 2006). Plaintiff claims that the findings of the ALJ are not supported by substantial e v id e n c e because the ALJ improperly analyzed the factors set forth in Polaski v. Heckler, 7 5 1 F.2d 943 (8th Cir. 1984), and failed to follow Social Security Ruling ("SSR") 96-7p w h e n assessing credibility. (Docket entry #19 at pp. 5-7, 9) Plaintiff also complains that th e ALJ erred in finding that Plaintiff had the RFC to perform light duty work and by f a ilin g to assess Plaintiff's non-exertional impairments. (#19 at pp. 7-9)

3

B.

P la in tiff's Credibility

P la in tif f claims that the ALJ did not afford sufficient weight to Plaintiff's s u b je c tiv e complaints of pain, instability, and swelling in his right ankle; the effect of his m e d ic a tio n s ; and the "intensity, persistence and limiting effects of the symptoms." (#19 a t p. 7) However, the ALJ acknowledged Plaintiff's subjective complaints and c o n s id e re d these complaints under the guidelines set out in Polaski. (Tr. 24) The Commissioner has the initial duty of determining the credibility of claimants. Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003). If an ALJ discredits a claimant's te s tim o n y and gives good reason for doing so, that determination is normally entitled to d e f e re n c e . Id. at 714. In this case, the ALJ's conclusion is supported by substantial evidence in the re c o rd . The ALJ noted that several of Plaintiff's impairments were controlled by m e d ic a tio n . (Tr. 15) Plaintiff testified that his hypertension is controlled by medication. (Tr. 847) Additionally, the ALJ considered medical records indicating that Plaintiff's a s th m a , GERD, type II diabetes mellitus, and neuropathic pain in his lower extremities w e re improved or controlled by medication. (Tr. 15, 401-03, 413, 657) See Brown v. B a rn h a r t, 390 F.3d 535, 540 (8th Cir. 2004) (citations omitted)(impairments controlled b y treatment or medication cannot be considered disabling). The ALJ also considered the objective medical evidence in the record. The m e d ic a l evidence indicated that: (1) some of Plaintiff's impairments have improved or

4

resolved through injections or surgical procedures; (2) a nerve conduction study showed n o evidence of ulnar neuropathy; (3) Plaintiff had normal left ventricular function, a n o rm a l heart size, and no acute cardiopulmonary problems; and (4) no physician had p la c e d a limitation on Plaintiff requiring that he elevate his feet. (Tr. 15-16) The ALJ also found that Plaintiff's daily activities were inconsistent with his a lle g a tio n s of disabling pain. (Tr. 15-16) Plaintiff testified he prepares meals, launders c lo th e s, washes dishes, shops for groceries, attends church, and visits with family and f rie n d s . (Tr. 16, 79) There is substantial evidence to support the ALJ's decision to d is c o u n t Plaintiff's testimony regarding the severity and disabling effect of his pain. Plaintiff also argues that the ALJ failed to follow SSR 96-7p when assessing his c re d ib ility. Under SSR 96-7p, an ALJ must first assess whether the claimant has e s ta b lis h e d a medically determinable physical or mental impairment that could reasonably b e expected to produce the symptoms he or she complains of and then assess the extent to w h ic h the intensity, persistence, and functionally limiting effects of the symptoms affect th e individual's ability to do basic work activities. Soc. Sec. Rul. 96-7p, 1996 WL 3 7 4 1 8 6 , at *1 (July 2, 1996). When making a credibility determination, the ALJ must c o n s id e r the individual's statements about symptoms along with the rest of the relevant e v id e n c e in the case, including the objective medical evidence, statements of treating or e x a m in in g physicians and other people about the symptoms and how they affect the in d iv id u a l. Id. The Rule also requires that credibility findings be supported by the

5

evidence in the record, and specifically state the weight given to the individual's s ta te m e n ts. Id. In this case, the ALJ's credibility assessment complies with the requirements of S S R 96-7p. The ALJ determined that Plaintiff had several severe physical impairments. (Tr. 13A) The ALJ considered the objective medical evidence in the record, including the re s u lts of an MRI, a nerve conduction study, and an x-ray. He also considered the s ta te m e n ts of Plaintiff's treating orthopedic specialist, Ruth L. Thomas, M.D.; Plaintiff's s ta te m e n ts regarding his daily activities; and Plaintiff's brother's testimony. The ALJ s p e c if ic a lly addressed the Plaintiff's statements and stated that, considering the other e v id e n c e in the record, he did not find them "entirely credible." He stated he did not give a n y weight to Plaintiff's brother's statements because his statements were an "uncritical a c c e p ta n c e of the claimant's complaints" and were "motivated by the desire to see the c la im a n t obtain benefits." (Tr. 16) The ALJ's credibility analysis followed the requirements of SSR 96-7p and is s u p p o rte d by substantial evidence. See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8 th Cir. 2005) (ALJ may discount subjective complaints if there are inconsistencies in th e record as a whole). C. P la in tiff's RFC

P la in tif f claims the ALJ erred by finding that Plaintiff had the RFC to perform lig h t duty work and by failing to assess Plaintiff's non-exertional impairments. The

6

Defendant contends that the ALJ considered all of the evidence on the record and that the e v id e n c e as a whole supports the ALJ's RFC assessment. (# 26 at p.8-10) "Even though the RFC assessment draws from medical sources for support, it is u ltim a te ly an administrative determination reserved to the Commissioner." Cox v. Astrue, 4 9 5 F.3d 614, 619-620 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946 (2 0 0 6 )). "The ALJ should determine a claimant's RFC based on all the relevant e v id e n c e , including the medical records, observations of treating physicians and others, a n d an individual's own description of his limitations." Lacroix v. Barnhart, 465 F.3d 8 8 1 , 887 (8th Cir. 2006) (citing Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2 0 0 4 )). In this case, the ALJ did not find that Plaintiff was capable of performing a full ra n g e of light duty work as suggested by the Plaintiff. Instead, the ALJ found the P la in tif f has the RFC to: lif t and carry up to 15 pounds occasionally; stand and walk for a total of 2 h o u rs in an 8 hour work period, 30 minutes without interruption; sit for a to ta l of 6 hours in an 8 hour work period, 2 hours without interruption; o c c a s io n a lly climb one flight of stairs, stoop, kneel, crawl; frequently b a la n c e ; never crouch; push/pull 15 pounds; no significant impairment in th e ability to handle, feel, see, hear, and speak; must avoid heights, c h e m ic a ls , dust, and vibrations. T h e ALJ found Plaintiff to be capable of light work but, considering all of the evidence in th e record, added additional limitations to his RFC. In doing so, the ALJ cited to s u b s ta n tia l evidence in the record including: medical records of Plaintiff's treating

7

physicians. He also referenced a 2005 MRI showing a "focal central protrusion at L5-S1 w h ic h does not cause significant mass effect on the spinal canal or neural foramina. Otherwise normal MRI lumbar spine." (Tr. 500A) Additionally, the ALJ referred to a S e p te m b e r 5, 2006 nerve conduction study which showed "no electrophysiologic e v id e n c e for ulnar neuropathy" (Tr. 596); a January 23, 2006 chest x-ray indicating n o rm a l heart size and vasculature and clear lungs (Tr. 229); a February 8, 2007 x-ray s h o w in g no acute cardiopulmonary problems (Tr. 722); and Plaintiff's testimony re g a rd in g his activities of daily living (Tr. 79). (Tr. 15-16) Finally, the ALJ noted that m a n y of Plaintiffs impairments, including his hypertension, type II diabetes mellitus, G E R D , and asthma, were controlled with medication. (Tr. 15) P la in tif f claims the ALJ failed to mention or discuss Plaintiff's testimony that he w e a rs a boot brace daily. However, the ALJ acknowledged that Plaintiff alleged that he m u s t elevate his feet through the day and that he had worn a brace for his right ankle. The ALJ did not find any objective medical evidence supporting this "level of limitation." (Tr. 16) The ALJ acknowledged that Dr. Thomas had recommended avoiding weight b e a rin g for three weeks following Plaintiff's February 5, 2007 ankle surgery. Dr. T h o m a s , however, did not indicate that Plaintiff needed to elevate his feet or limit his a c tiv ity after that period. (Tr. 16) Based on the foregoing, the ALJ found, based on substantial evidence, that P la in tif f had the RFC to stand and walk for two hours in an eight-hour day. See Raney v.

8

Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (none of claimant's treating physicians o f f e re d opinion she was so impaired or disabled she could not work any job); Hensley v. B a rn h a r t, 352 F.3d 353, 357 (8th Cir. 2003) (lack of functional restrictions on activities is in c o n s is te n t with claim of disability); Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2 0 0 3 ) (ALJ may consider absence of such opinion by treating physicians). P la in tif f also claims that the ALJ ignored his nonexertional limitations. Nonexertional limitations are those that affect a claimant's "ability to meet the demands o f jobs other than the strength demands, that is, demands other than sitting, standing, w a lk in g , lifting, carrying, pushing, or pulling." 20 C.F.R. §§ 404.1569a(a), 416.969a(a). Plaintiff claims the ALJ failed to consider the pain caused by stooping, climbing, s q u a ttin g and bending. In determining Plaintiff's residual functional capacity, however, the ALJ engaged in a realistic assessment of Plaintiff's abilities and considered the extent to which Plaintiff c o u ld perform those activities on an occasional and frequent basis. After considering all o f the evidence, the ALJ appropriately concluded that Plaintiff could only occasionally " c lim b one flight of stairs, stoop, kneel, crawl . . . [and] never crouch." While there is e v id e n c e in the record indicating Plaintiff may have other limitations, that evidence is d e riv e d solely from the Plaintiff's testimony and that of his brother, which the ALJ found to be not wholly credible.

9

IV.

Conclusion: T h e re is sufficient evidence in the record to support the Commissioner's

a s s e s sm e n t that Plaintiff retains the capacity to perform work which exists in substantial n u m b e rs in the national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the case. IT IS SO ORDERED this 7th day of July, 2009.

____________________________________ UNITED STATES MAGISTRATE JUDGE

10