Hartzog v. Social Security Administration

Filing 21

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION recommending that the District Court affirm the final determination of the Commissioner and dismiss 2 Plaintiff's Complaint with prejudice. Objections to R&R due by 5/26/2009. Signed by Magistrate Judge Beth Deere on 5/12/09. (hph)

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

T I M O T H Y HARTZOG v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration N O . 5:08CV00201 JMM/BD

PLAINTIFF

DEFENDANT

P R O P O S E D FINDINGS AND RECOMMENDED DISPOSITION I. I n s tr u c tio n s T h is recommended disposition has been submitted to United States District Judge J a m e s M. Moody. The parties may file specific objections to these findings and re c o m m e n d a tio n s and must provide the factual or legal basis for each objection. The o b je c tio n s must be filed with the Clerk no later than eleven (11) days from the date you re c e iv e the findings and recommendations. A copy must be served on the opposing party. The District Judge, even in the absence of objections, may reject these proposed findings a n d recommendations in whole or in part. II. R e c o m m e n d e d Disposition P la in tif f , Timothy Hartzog, has appealed the final decision of the Commissioner of th e Social Security Administration to deny his 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. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ) ; see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a

re a s o n a b le mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 0 2 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 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 lain tiff alleged that he was limited in his ability to work by diabetes, problems with h is feet and bipolar disorder. (Tr. 148) The Commissioner found that he was not disabled w ith in the meaning of the Social Security Act. The only issue before this Court is whether th e Commissioner'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 and a supplemental hearing, the A d m in istra tiv e Law Judge1 (ALJ) concluded that Plaintiff had not been under a disability w ith in the meaning of the Social Security Act at any time through March 21, 2008, the date o f his decision. (Tr. 27) On July 11, 2008, the Appeals Council denied Plaintiff's request

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The Hon. John Heck Goree. 2

f o r a review of the ALJ's decision, making the ALJ's decision the final decision of the C o m m is s io n e r. (Tr. 4-6) Plaintiff then filed his complaint initiating this appeal. (Docket e n try #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. P la in t if f was 43 years old at the time of the first of two hearings. (Tr. 394) He is a h ig h school graduate with additional vocational training. (Tr. 396) He has past relevant w o rk as a welder, a stocker in a grocery store, a rice mill worker, a draftsman and a film line o p e ra to r in a plastics plant. (Tr. 149, 472-73). The 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. 3

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., § § 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 his a lleg e d onset date. (Tr. 15) He found that Plaintiff had "severe" impairments, non-insulin d ep en d en t diabetes mellitus, numbness in his hands and feet, hypertension, bipolar disorder, d e p re ss io n , a personality disorder and a mood disorder, but that he did not have an im p a irm en t or combination of impairments that met or equaled a Listing. (Tr. 15) He ju d g e d that Plaintiff's allegations regarding his limitations were not totally credible. (Tr. 19) T h e ALJ found that Plaintiff retained the residual functional capacity for light work th a t was unskilled or low semi-skilled, where he could understand, carry out and remember c o n c re te instructions and where contact with supervisors, fellow workers and the public was s u p e r f ic ia l. (Tr. 16) He determined that Plaintiff was unable to perform any of his past re lev a n t work. (Tr. 25) Based on the testimony of a vocational expert witness in response to a hypothetical question, the ALJ found that there were a significant number of jobs in the e c o n o m y which Plaintiff could perform, notwithstanding his limitations, for example, c a sh ie r and file clerk. (Tr. 26-27) Consequently, the ALJ concluded that Plaintiff was not d is a b le d . (Tr. 27) P lain tiff argues that the determination that there were other jobs that Plaintiff could p e rf o rm is not supported by substantial evidence because the ALJ did not incorporate into h is hypothetical question the residual functional capacity determination of Greg Wooten, 4

M .D ., his treating physician. (Br. 10-11) On January 5, 2006, Dr. Wooten completed a M e d ic a l Assessment of Ability to do Work-related Activities (Mental). (Tr. 367-68) He c h e c k e d boxes on that form indicating that Plaintiff had a fair2 ability to follow work rules; u n d e rs ta n d , remember and carry out simple job instructions and maintain personal a p p e a ra n c e . Id. He checked boxes indicating poor/none 3 with respect to Plaintiff's ability to re late to co-workers; deal with the public; use judgment; interact with supervisors; deal with w o rk stresses; maintain attention/comprehension; understand, remember and carry out c o m p le x job instructions; understand, remember and carry out detailed, but not complex, job in s tru c tio n s ; relate predictably in social situations and demonstrate reliability. Id. The d o c to r did think that Plaintiff was capable of managing benefits in his own best interest. (Tr. 368) T h e ALJ considered Dr. Wooten's opinion at considerable length. (Tr. 20-25) He u ltim ate ly did not give the opinion controlling weight because it was inconsistent with Dr. W o o te n 's treatment notes. (Tr. 24) According to the medical records, Dr. Wooten saw P lain tiff June 15, 2006. (Tr. 357) Plaintiff indicated that he was doing "quite well" on his c u rr e n t medication and reported no side effects. Id. He appeared "euthymic." 4 Id. On O c to b e r 26, 2006, Dr. Wooten saw Plaintiff again. (Tr. 351) He indicated that he was doing w e ll on his current medication and reported no side effects. Id. He was pleased with his c u rr e n t treatment. Id. He saw Plaintiff again March 1, 2007. (Tr. 347) Despite being under

As defined on the form, "fair" means "[a]bility to function in this area is seriously lim ite d but not precluded."
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As defined on the form, "poor/none" means "[n]o useful ability to function in this area."

Id . Characterized by joyfulness, mental peace and tranquility, moderation of mood, not m an ic or depressed. PDR Medical Dictionary 678 (3d ed. 2006). 5
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a lot of stress, he indicated that he was doing well. Id. He reported no side effects from his m e d ic a tio n . Id. He said his medications were working. Id. The entries on the checklist form completed by Dr. Wooten simply do not have f o u n d a tio n in the medical signs and symptoms noted in his treatment records; the two a n a lyse s just cannot be reconciled. Weise v. Astrue, 552 F.3d 728, 732 (8th Cir. 2009). Furthermore, residual functional capacity checklists, although admissible, are entitled to little weight in the evaluation of disability. See Taylor v. Chater, 118 F.3d 1274, 1279 (8th C ir. 1997); O'Leary v. Schweiker, 720 F.2d 1334, 1341 (8th Cir. 1983); see also Cantrell v. A p fe l, 231 F.3d 1104, 1107 (8th Cir. 2000)(discounting treating physician's two pages of c h e c k e d boxes devoid of illuminating examples, descriptions or conclusions). For all these re a so n s , the Court concludes that the ALJ gave proper weight to Dr. Wooten's opinion and s u f f ic ie n tly explained his reasons for doing so. Plaintiff also contends that the ALJ erroneously discounted his allegation of n u m b n e s s and tingling in upper and lower extremities. (Br. 12) The ALJ considered those a lle g a tio n s , but found that Plaintiff had exaggerated his limitations and symptoms to some ex tent. (Tr. 24) The ALJ evaluated Plaintiff's subjective complaints in light of the factors o f Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).5 (Tr. 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:

The ALJ also cited Social Security Ruling 96-7p and 20 C.F.R. §§ 404.1529 and 416.929. ( T r . 17) That Ruling tracks Polaski and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and elaborates on them. 6

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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 lack of objective medical evidence in support of Plaintiff's allegations, P la in tif f 's daily activities, his functional capabilities and the lack of greater restriction p la c ed on Plaintiff by his physicians, the ALJ could rightly discount Plaintiff's subjective c o m p la in ts . See, e.g., Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (ALJ may d isco u n t subjective complaints if there are inconsistencies in the record as a whole); D u n a h o o v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (ALJ may discount complaints in c o n sis ten t with the evidence as a whole); Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1 9 9 6 ) (after full consideration of all evidence relating to subjective complaints, ALJ may d is c o u n t complaints if there are inconsistencies in evidence as a whole). Plaintiff left his last job, not because he was unable to do the work, but rather because h e was fired after he got mad at a co-worker and called him a racially prohibited name. (Tr. 4 0 0 -0 1 ) He alleged disability since the day he was fired. (Tr. 402) He collected u n e m p lo ym e n t for about six months, however. (Tr. 401-02) An application for 7

u n e m p lo ym e n t compensation benefits adversely affects a claimant's credibility. Jernigan v. S u lliv a n , 948 F.2d 1070, 1074 (8th Cir. 1991); see Barrett v. Shalala, 38 F.3d 1019, 1023 (8 th Cir. 1994). In Arkansas, an unemployed worker must be "physically and mentally able to perform suitable work, and [be] available for such work" in order to draw unemployment b e n e fits . A.C.A. § 11-10-507(3)(A) (2007). This is clearly inconsistent with a claim of d is a b ility during the same period of time. Barrett, supra. H e also looked for other work for approximately six months. (Tr. 401-02) A record o f contemplating work shows Plaintiff did not view his limitations as disabling. Bentley v. S h a la la , 52 F.3d 784, 786 (8th Cir. 1995). An intention to work tends to prove that a p la in tif f is able to work. Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). P lain tiff does not point to any medical evidence concerning numbness and tingling in u p p e r and lower extremities. The Court has located only one occasion on which he co m p lain ed to his medical provider of numbness and tingling in his feet, April 6, 2005. (Tr. 2 3 9 ) He was to be referred to a podiatrist. Id. When he was next seen, June 10, 2005, he d id not complain about his feet. (Tr. 235) In September of 2005, he complained of hitting h is toe on an iron at home. (Tr. 234-35) There was no mention of numbness or tingling. Id. Plaintiff indicated that he walked, drove and went out alone. (Tr. 143) He shopped f o r food and household items three times a month. Id. He paid bills, counted change, h a n d le d a savings account and used a checkbook. Id. He indicated that, on a typical day, he h o m e schooled his children, watched television, read, played computer games, went for a w a lk and sometimes cooked and cleaned house. (Tr. 129) He groomed without assistance. (Tr. 111, 130) He attended church. (Tr. 114, 133) He cooked daily. (Tr. 112) Plaintiff e n g a g ed in extensive daily activities, which is inconsistent with the level of pain and lim ita tio n alleged. See Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007)(plaintiff c a re d for eleven-year-old daughter, drove her to school, drove elsewhere, fixed simple 8

m e a ls, did housework, shopped for groceries and had no trouble handling money); Pelkey v. B a r n h a r t, 433 F.3d 575, 578 (8th Cir. 2006)(plaintiff performed household chores, mowed th e lawn, raked leaves, shopped for groceries and drove a car); Forte v. Barnhart, 377 F.3d 8 9 2 , 896 (8th Cir. 2004)(plaintiff attended college classes and church, shopped for groceries, ra n errands, cooked, drove, walked for exercise and visited friends and relatives); Haley v. M a s s a n a r i, 258 F.3d 742, 748 (8th Cir. 2001)(plaintiff took care of personal needs, washed d is h e s, changed sheets, vacuumed, washed cars, shopped, cooked, paid bills, drove, attended c h u rc h , watched television, listened to radio, read and visited friends and relatives); Gray v. A p fe l, 192 F.3d 799, 804 (8th Cir. 1999)(plaintiff cared for himself, did household chores, d ro v e short distance, performed other miscellaneous activities); Haggard v. Apfel, 175 F.3d 5 9 1 , 594 (8th Cir. 1999)(plaintiff cooked some meals, watered flowers around house, helped w if e paint, watched television, went out for dinner, occasionally drove and occasionally v isited with friends); Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997)(plaintiff d re ss e d and bathed herself, did some housework, cooking and shopping); Pena v. Chater, 76 F .3 d 906, 908 (8th Cir. 1995)(daily caring for one child, driving when unable to find ride a n d sometimes going to grocery); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1995) (v isitin g neighbors, cooking own meals, doing own laundry and attending church); Novotny v . Chater, 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 h e lp with household cleaning and other chores, visited friends and relatives and attended c h u rc h twice a month); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)(plaintiff lived alon e, drove, 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, 9

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). 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. Mapes v. Chater, 82 F.3d 2 5 9 , 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. F o r these reasons, the Court hereby recommends that the District Court affirm the f in a l determination of the Commissioner and dismiss Plaintiff's complaint with prejudice. D A T E D this 12th day of May, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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