Dorn v. Social Security Administration

Filing 14

MEMORANDUM AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Beth Deere on 1/14/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION A L IC E M. DORN v. 5:08CV00291 BD DEFENDANT PLAINTIFF

M IC H A E L J. ASTRUE, Commissioner, Social Security Administration,

M E M O R A N D U M AND ORDER P la in tif f , Alice M. Dorn, has appealed the final decision of the Commissioner of the S o c ia l Security Administration denying her claim for Disability Insurance benefits. Both p a rtie s have submitted appeal briefs, and the case is ready for decision.1 I. A D M IN I S T R A T I V E PROCEEDINGS T h e Plaintiff filed an application for disability insurance benefits on October 20, 2 0 0 4 , alleging disability since May 15, 2004. (Tr. 37-39) Her claims were denied initially a n d upon reconsideration. (Tr. 27-29, 31-32) At the Plaintiff's request, a hearing was held b e f o re an Administrative Law Judge2 ("ALJ"). After the hearing, at which Plaintiff, her sis te r, and a vocational expert testified, the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act at any time through February 7, 2 0 0 7 , the date of his decision. (Tr. 16-17) On September 12, 2008, the Appeals Council d e n ie d Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the f in a l decision of the Commissioner. (Tr. 3-5) Plaintiff then filed her complaint initiating th is appeal. (Docket #2)

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The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #11) The Honorable Everet Dail Stiles.

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II.

S T A N D A R D OF REVIEW 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 is free of legal error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); see also 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept as a d e q u a te to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); R e y n o ld s v. Chater, 82 F.3d 254, 257 (8th Cir. 1996).

The Court must consider both evidence that detracts from and evidence that supports the Commissioner's decision. England v. Astrue, 490 F.3d 1017, 1019 (8th Cir. 2007). However, if substantial evidence supports the decision, then the court may not reverse, "even if inconsistent conclusions may be drawn from the evidence, and even if we may have reached a different outcome." England, 490 F.3d at 1019. Thus, the only issue before
th is Court is whether the Commissioner's decision that Plaintiff was not disabled within the m e a n in g of the Act is supported by substantial evidence. U n d e r the Social Security Act, "disability" is the "inability to engage in any su b sta n tia l gainful activity by reason of any medically determinable physical or mental im p a irm e n t 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 than 12 months." 42 U.S.C. § 423(d)(1)(A). A " p h ys ic a l or mental impairment" is "an impairment that results from anatomical, p h ys io lo g ic a l, or psychological abnormalities which are demonstrable by medically a c c e p ta b le clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). Plaintiff alleged that she was limited in her ability to work by breast cancer and high b lo o d pressure. (Tr. 86) She was fifty-nine years old at the time of the hearing. (Tr. 264) She is a high school graduate with three years of college. Id. She has past relevant work as

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a customer service representative for a telephone company. (Tr. 15, 57-59, 78-79, 87-88, 93 -95 ) III. 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 se v e re impairment; (3) if so, whether the impairment (or combination of impairments) met o r 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. If the claimant has sufficient residual f u n c tio n a l capacity to perform past relevant work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). The ALJ found that Plaintiff was last insured for the purposes of Disability Insurance b e n e f its December 31, 2005.3 (Tr. 10, 12) He found she had not engaged in substantial g a in f u l activity since her alleged onset date. (Tr. 12) He found that Plaintiff had "severe" im p a irm e n ts , diabetes mellitus and the residual effects of treatment for breast cancer. Id. He found she did not have an impairment or combination of impairments that met or equaled a Listing. (Tr. 13) He judged that Plaintiff's allegations regarding the intensity, persistence a n d limiting effects of her symptoms were not entirely credible. Id. The ALJ found that Plaintiff retained the residual functional capacity for a wide range o f sedentary work. Id. He determined she was unable to perform her past relevant work. (Tr. 15) Based on the testimony of a vocational expert witness in response to a hypothetical q u e s tio n , the ALJ found that there were a significant number of jobs in the economy which In order to receive Disability Insurance benefits, an applicant must establish that she w a s disabled before the expiration of her insured status. 42 U.S.C. §§ 416(i), 423(c) (1991); P y la n d v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998); Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir. 1990). 3
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Plaintiff could perform, notwithstanding her limitations, for example, bookkeeper or a c c o u n tin g clerk. (Tr. 16) Thus, the ALJ concluded that Plaintiff was not disabled. Id. IV . D IS C U S S IO N P la in tif f argues the ALJ's decision is not supported by substantial evidence because h e failed to grant proper weight to the side effects of her medications. (Br. 5-8) Plaintiff te s tif ie d that her medications made her incoherent and unfocused. (Tr. 267) She testified th a t if she sat for more than thirty minutes, she would go to sleep (Tr. 268, 271), and that she w a s always "very, very tired." (Tr. 265) She points out that a treatment notation by Asif M a so o d , M.D., a treating oncologist, reflects that she has been treated in the past with Elavil w h ic h caused, "a significant amount of sedation" so she did not want to take it again. (Tr. 2 3 5 ) Dr. Masood planned to try Neurontin and perhaps Lyrica to see if they would create a sim ila r problem. His note is dated July 25, 2006, almost eight months after the relevant time p e rio d . Id. In his opinion, the ALJ addressed Plaintiff's contentions: W ith regard to aggravating factors and functional limitations, the claimant te s tif ie d at the hearing that she is unable to lift more than a gallon of milk, c a n n o t walk more than half a mile at a time, can sit for no more than 30 m in u te s at a time, and she requires 2-3 naps per day (which may last up to 2 h o u rs each). However, it does not appear that any physician has placed this le v e l of limitation upon the claimant, and there are no clinical findings in the re c o rd that corroborate this claim of extreme limitation. In fact, the medical e v id e n c e indicates that the claimant remains capable of performing sedentary w o rk , with the additional limitations described above. (T r. 14) P la in tif f 's testimony of significant side effects of medication is inconsistent with the f a c t that, during the relevant time period, she never discussed side effects4 with her p h ys ic ia n s and never asked for modification of the medication. Barrett v. Shalala, 38 F.3d

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Except for Elavil, which she was no longer taking. (Tr. 239) 4

1019, 1023 (8th Cir. 1994); see Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). It f o llo w s that, if she addressed such concerns outside the relevant time, she would have done so during the relevant time, especially if the side effects were as significant as her testimony in d ic a te d . Plaintiff underwent surgery for cancer of her left breast July 7, 2004. (Tr. 112) On Ju ly 19, 2004, she felt well and essentially had normal strength and energy. (Tr. 163) July 2 6 , 2004, she reported no new problems or complaints; she looked well; and she was to b e g in chemotherapy the following week. (Tr. 162) A follow-up note August 16, 2004, in d ic a te d she tolerated the first cycle of her chemotherapy well; she had "some fatigue and tire d n e ss for a couple of days but she is back to her normal usual self." (Tr. 161) August 23, 2004, Plaintiff reported having "a little queasy, nauseous stomach" after h e r treatment. (Tr. 160) By September 13, 2004, she had completed her second cycle of c h e m o th e ra p y; she reported that she tolerated it "extremely well." (Tr. 159) On October 4, 2 0 0 4 , after her third round of chemotherapy, Plaintiff denied any significant complaints. (Tr. 158) On October 25, 2004, she complained of severe fatigue and tiredness after her last ro u n d of chemotherapy, but was feeling a little better. (Tr. 156) She was regaining some stre n g th and energy. Id. On November 11, 2004, Plaintiff was doing well and reported no problems; she still h a d more adjuvant therapy left. (Tr. 120, 2305 ) By November 16, 2004, she had started on a se c o n d chemotherapy drug. She tolerated the first round of this course of treatment "pretty w e ll without any nausea, vomiting, numbness or tingling." (Tr. 155) December 7, 2004, she re p o rte d "some numbness and tingling off and on in her fingers" following chemotherapy, b u t otherwise she was "doing well." (Tr. 154) December 28, 2004, she denied weakness in

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There is some duplication of the record. 5

any limb or paresthesia6 or tingling sensations in the body. (Tr. 153) On January 11, 2005, sh e reported that she felt "pretty good." Her appetite was good, but her energy level was p o o r. (Tr. 137) By January 20, 2005, Plaintiff had completed her chemotherapy. (Tr. 152) Again, sh e denied weakness in any limb or paresthesia sensations in her body. Id. February 10, 2 0 0 5 , she reported she was doing well, but had some left finger pains when her arm swelled. (Tr. 229) In early March, 2005, Plaintiff developed some numbness and tingling of her left f in g e rs after about four weeks of radiation treatment. (Tr. 136) By March 24, 2005, she had c o m p le te d radiation treatment. (Tr. 151) She reported numbness and tingling in her f in g e rtip s . Id. Her strength and energy had been improving and were "pretty good." Id. In early April, 2005, she was doing well; she had no neurologic symptoms. (Tr. 135) April 7, 2005, she was doing well. (Tr. 228) Her energy level was "pretty good and im p ro v in g ." Id. May 12, 2005, she was doing well; she reported no problems. (Tr. 227) August 15, 2005, she was doing "ok," but she had some minor aches and pains. (Tr. 226) On July 11, 2005, Plaintiff had no complaints; she denied weakness in any limb or p a re s th e s ia or tingling sensations in the body. (Tr. 241) November 14, 2005, she had n u m b n e s s and tingling in her fingers and toes. Those symptoms were getting better, but w e re not completely gone. (Tr. 239) Otherwise, she had done well. Id. She had some in c re a s in g generalized fatigue and tiredness, but was able to take care of herself and "do p re tty much whatever she needs to do. She couldn't tolerate Elavil well which was given to h e r last year." When she returned in four months, her doctor would consider Neurontin 7 if A spontaneous abnormal usually not painful sensation (e.g. burning, pricking). PDR M e d ic a l Dictionary 1425 (3d ed. 2006).
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Neurontin has an analgesic effect. Physicians' Desk Reference 2462 (62nd ed. 2008). 6

her peripheral neuropathy was not better. (Tr. 239-40) February 16, 2006, she was doing w e ll and reported no problems. (Tr. 225) In December of 2004, while she was still taking chemotherapy, Plaintiff completed a F u n c tio n Report- Adult. (Tr. 67-74) She indicated that she groomed without assistance, did la u n d ry, cooked, and drove (Tr. 67); she paid her mother's bills and took her to doctors' a p p o in tm e n ts (Tr. 68); she changed beds, did light cleaning, washed dishes and folded c lo th e s (Tr. 69); she went grocery shopping and could pay bills, count change, handle a sa v in g s account and use a checkbook/money orders (Tr. 70); she talked on the phone daily, re g u la rly attended church and occasionally received visitors (Tr. 71); she could pay attention a s long as necessary (Tr. 72). Based on the record, the ALJ's discounting of Plaintiff's c o m p la in ts of significant side effects from her medications is supported by substantial e v id e n c e . Plaintiff also contends that the ALJ's decision is not supported by substantial e v id e n c e because it did not contain rationale supporting a conclusion that she did not meet a L istin g . (Br. 9-10) The ALJ's lack of elaboration of his conclusion that Plaintiff did not m e e t a Listing does not require reversal where, as here, the record supports the ALJ's c o n c lu s io n . Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Dunahoo v. Apfel, 241 F .3 d 1033, 1037 (8th Cir. 2001). Plaintiff has the burden of showing that she met a Listing. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); Johnson v. Barnhart, 390 F.3d 1 0 6 7 , 1070 (8th Cir. 2004); Pyland v. Apfel, 149 F.3d at 877. She did not meet that burden. T h is Court cannot review the evidence and make an independent decision. Neither m a y it reverse the decision of the ALJ because there is evidence in the record which c o n tra d ic ts his findings. The test is whether there is substantial evidence on the record as a w h o le which supports the decision of the ALJ. E.g. Mapes v. Chater, 82 F.3d 259, 262 (8th C ir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). 7

V.

C O N C L U S IO N T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, the

tra n s c 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 tte r ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d e c is io 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 14th day of January, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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