Holmes v. Social Security Administration

Filing 31

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing pltf's complaint with prejudice. Signed by Magistrate Judge Jerry W. Cavaneau on 9/26/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

CYNTHIA HOLMES
V.

PLAINTIFF
NO. 5:09-cv-00371-JWC

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff, Cynthia Holmes, seeks judicial review of the denial of her claims
for a period of disability and disability insurance benefits and for supplemental
security income benefits. 1 Judicial review of the Commissioner's denial of benefits
examines whether the decision is based on legal error and whether the findings of
fact are supported by substantial evidence in the record as a whole. Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009); see 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is "less than a preponderance but is enough that a reasonable
mind would find it adequate to support the conclusion." Wiese, 552 F.3d at 730.
In its review, the Court must consider evidence supporting the Commissioner's
decision as well as evidence detracting from it. Id. That the Court would have
reached a different conclusion is not a sufficient basis for reversal; rather, if it is

1

The parties have consented to the jurisdiction of the Magistrate Judge. (Doc. 9)

possible to draw two inconsistent conclusions from the evidence and one of these
conclusions represents the Commissioner's findings, the denial of benefits must be
affirmed. Id. In assessing the substantiality of the evidence, the Court must
consider evidence that detracts from the Commissioner's decision as well as
evidence that supports it; the Court may not, however, reverse the Commissioner's
decision merely because substantial evidence would have supported an opposite
decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3
F.3d 1210, 1213 (8th Cir. 1993).
An Administrative Law Judge (ALJ) held a hearing on September 13, 2006,
and rendered an unfavorable opinion on July 20, 2007. The Appeals Council
denied Plaintiff’s request for review on September 30, 2009, rendering the ALJ’s
opinion the final opinion of the Commissioner.
Plaintiff was 35 years of age at the time of the hearing and alleges an onset
date of June 18, 2003, which is the date she suffered injuries in a motor vehicle
accident. She has a college degree and past relevant work as a retail manager,
secretary and clerk. She claims disability arising from neck and back pain,
temporomandibular joint dysfunction and headaches. The relevant time period for
purposes of evaluating this claim is from June 18, 2003, to July 20, 2007.
To evaluate Plaintiff's claim, the ALJ followed the five-step sequential
process. See 20 C.F.R. §§ 404.1520, 416.920; see also , 482 U.S. 137, 140-42

(1987). At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date. At step two, he found that Plaintiff
suffered from the following severe impairments: cervical and lumbar pain with
possible degenerative changes; headaches; temporomandibular joint dysfunction;
status post deep vein thrombosis in the right lower extremity; status post
laproscopic ventral/umbilical hernia repair.2 At step three, the ALJ determined that
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the listings). At step four he found Plaintiff's complaints not fully
credible and that she retained the residual functional capacity (RFC) to perform a
full range of sedentary work, with the ability to occasionally lift/carry up to 10
pounds; sit for 6 hours during an 8 hour workday; and stand/walk for 6 hours
during an 8 hour workday. He further determined that Plaintiff was capable of
performing her past relevant work as a secretary, which he found did not require
the performance of work-related activities precluded by her RFC. He thus
terminated his analysis at step four, finding that Plaintiff was not under a disability
at any time through the date of his decision.
Plaintiff raises two arguments. She states the first as follows:

2

The latter two conditions were acute and appear to have been resolved and are
not part of the disability picture for the relevant time period.

THE COMMISSIONER ERRED AS A MATTER OF LAW IN
RELYING ON VOCATIONAL EXPERT TESTIMONY WHICH
DID NOT INCLUDE EXERTIONAL AND NON EXERTIONAL
LIMITATIONS WHICH WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE AS A WHOLE.
Plaintiff’s argument is misplaced. The ALJ ended his analysis at step four,
finding Plaintiff to be able to return to her past relevant work as a secretary. At
this step, the burden of proving she cannot return to her past relevant work remains
with Plaintiff and Vocational Expert (VE) testimony is not required. Lewis .
Barnhart, 353 F.3d 642, 648 (8th Cir. 2003). The ALJ here called a VE, but not for
the purpose of eliciting expert testimony whether Plaintiff could return to past
relevant work or perform other work available in the economy. He merely elicited
fact testimony; asking for the classifications of Plaintiff’s past relevant work and
whether her skills were transferable.3 This was proper, as the ALJ was not required
to obtain expert opinion based on a hypothetical question at step four. Further, he
gave counsel the opportunity to further question the VE, which opportunity
counsel declined.
It is true there is precedent stating that a hypothetical question to a VE must
include all relevant impairments supported by substantial evidence in the record,
but those holdings pre-suppose that an opinion based on a hypothetical is sought.

3

The VE characterized work as a retail manager to be skilled light work; work as
a secretary to be skilled sedentary work; and work as a general clerk to be semi-skilled
light work. She also stated that Plaintiff had extensive transferable skills. Tr. 59.

All but one of the precedents cited by Plaintiff were cases where the ALJ’S
analysis had progressed to step five and the ALJ asked a hypothetical question to
determine whether there were jobs in the economy which a claimant could perform
despite that claimant’s limitations. At step five, the burden is on the Commissioner
to show there are such jobs and vocational expert testimony is often necessary on
that issue. The other case cited by Plaintiff, Grissom v. Barnhart, 416 F. 3d 834
(8th Cir. 2005) was a step four case where the ALJ used a hypothetical question to
elicit an opinion whether the plaintiff could return to her past relevant work. That
case does not, however, stand for the proposition that VE testimony was necessary
at that step.
Plaintiff’s argument that there was a flawed hypothetical is moot.
Plaintiff states her second point for reversal as follows:
THE COMMISSIONER/ALJ ERRED AS A MATTER OF LAW IN NOT
ACCORDING ADEQUATE WEIGHT TO MRS. HOLMES’ TREATING
PHYSICIANS, INCLUDING CHIROPRACTIC PHYSICIAN, DR. COURTNEY
AND FAILED TO COMPLY WITH 20 C.F.R. § 403-1527
Plaintiff’s argument mentions Dr. Carl Covey, M.D.; Dr. Christine Reyes,
M.D.; and Michael Courtney, D.C. Following the hearing, the ALJ sent Plaintiff to
Dr. Patricia Knott for examination and an evaluation. Although she was not a
treating physician, the Court will discuss her opinion as well. 4
4

Plaintiff discusses her findings under her first point and argues that the ALJ
failed to give proper weight to those findings. His argument was that her findings should

Plaintiff has a substantial history of complaints and treatment. She testified
that she suffers from rather extreme limitations in her daily life and functional
abilities. However, the objective medical evidence does not support her
contentions as to the extent of her impairments. The ALJ took this into account,
along with other relevant factors, in determining that her complaints were not fully
credible. Plaintiff does not challenge his findings as to Plaintiff’s credibility. The
ALJ’s unchallenged credibility finding and the lack of objective medical evidence
are relevant to evaluating whether the ALJ gave proper weight to the doctors’
opinions.
An MRI of Plaintiff’s cervical spine performed on October 21, 2003,
showed minimal relevant findings:5
FINDINGS: No torticollis.6 Normal cervical lordotic curvature. The
signal and size of the cervical spinal cord and proximal thoracic spinal
cord are normal.
C5-6, C6-7 central disc shallow mild protrusion abutting the dural sac
at both levels. Annular rent is present at C5-6. No cord encroachment
at either level. No foraminal stenosis or advanced facet disease.
Minimal left facet arthropathy at C4-5 and C5-6 without foraminal
narrowing. Normal cervical marrow signal.

have been included in a hypothetical. See, Plaintiff’s Brief pp. 11-15.
5

Tr. 396.

6

Torticollis is defined as twisted neck, with the head to one side, associated

with muscle spasm.

These findings are minimal in that they show normal curvature of the
cervical spine, no narrowing of the areas through which nerves pass, normal
marrow signals. Although there is mild protrusion of two cervical discs, there is no
evidence of encroachment on any nerve. An MRI of Plaintiff’s lumbar spine done
in April 2005 was normal 7 and a myelogram and CT scan of the cervical spine on
September 13, 2005 were also normal. 8
As to Dr. Covey, it is true that he was a treating physician for a substantial
period of time and that he rendered diagnoses and treatment for Plaintiff’s
problems. However, the ALJ did discuss this evidence adequately. Plaintiff
argues that the ALJ improperly discounted Dr. Covey’s opinion, but points to no
opinion rendered by this doctor as to her limitations or how her conditions affected
her ability to function. Nor has the Court has been able to find any evidence that
this doctor ever rendered such an opinion. The record contains only his medical
records regarding diagnosis and treatment. There is no doubt Plaintiff suffers from
medical problems. The question is whether those problems prevent her from
working. Dr. Covey has not rendered an opinion on that issue. It is axiomatic that
mere proof of diagnosis and treatment does not equate to proof of disability.
Dr. Reyes also treated Plaintiff. She treated Plaintiff from April 27, 2006, to

7

Tr. 394.

8

Tr. 782-783.

February 28, 2007.9 The records from the early visits note a diagnosis of chronic
lower and upper back pain. Then, on the September 18, 2006, visit, there is the
notation in the assessment: "Chronic upper and lower back pain, for which the pt is
disabled. She has been deemed disabled since 2004." Subsequent entries, in the
“assessment” state: "Chronic back pain for which the patient is disabled." One
says, ". . .for which the patient is considered disabled." It is highly questionable
whether this constitutes an opinion at all. It appears that Dr. Reyes was just
repeating for her records what she had been told by her patient. Even if it were
assumed that Dr. Reyes was stating her opinion, there is no discussion and no basis
stated for the “opinion.” It is not binding on the ALJ or the court in evaluating
Plaintiff’s impairments and RFC, and the ALJ was entitled to discount these
statements. opinions that a claimant is "disabled" or "unable to work" concern
issues reserved for the Commissioner and are not the type of opinions which
receive controlling weight. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010).
Plaintiff was sent to Dr. Patricia A. Knott, M.D. for a consultative
examination following her hearing before the ALJ. Dr. Knott took Plaintiff’s
history and conducted a physical examination.10 The physical examination revealed
normal motor strength and intact sensation for the upper and lower extremities as

9

Tr. 795-797, 829-831.

10

Dr. Knott’s report is Tr. 825-828.

well as other negative findings. Although Dr. Knott found some limitation of
motion and tenderness, she concluded that Plaintiff’s neurological examination was
essentially normal. The doctor did not take Plaintiff’s complaints at face value and
discounted her claims as to her limited functional capacity, but did find that
Plaintiff could sit only four hours and stand/walk only four hours in an eight hour
workday. The ALJ’s opinion recounted Dr. Knott’s findings, but, as stated above,
found that Plaintiff could sit six hours and stand/walk six hours in an eight hour
workday in finding that she was capable of a full range of sedentary work.
However, Dr. Knott was not a treating physician. Her report specifically stated
that she did not have the MRI results available to her. Her finding were based on a
single examination and made her findings as to sitting/standing/walking on a
residual functional capacity checklist. Residual functional capacity checklists are
entitled to little weight in the evaluation of disability. E.g., Taylor v. Chater, 118
F.3d 1274, 1279 (8th Cir. 1997); O'Leary v. Schweiker, 720 F.2d 1334, 1341 (8th
Cir. 1983).
Finally, the ALJ stated valid reasons for assigning no weight to Dr.
Courtney’s opinion that Plaintiff was totally and permanently disabled. The record
bears out the contention that the opinion was unsupported, inconsistent with other
evidence and based on an uncritical acceptance of Plaintiff’s complaints.
Defendant properly points out that the Court is not entitled to weigh the

evidence. It is not the task of this Court to review the evidence and make an
independent decision. Neither is it to reverse the decision of the ALJ because there
is evidence in the record which contradicts his findings. The test is whether there
is substantial evidence on the record as a whole which supports the decision of the
ALJ. E.g., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); Pratt v. Sullivan,
956 F.2d 830, 833 (8th Cir. 1992).
Plaintiff argues that the ALJ did not evaluate the treating physicians’
opinions under the framework described in 20 C.F.R. § 1527. He raises this
primarily in regard to treating physician Dr. Covey. However, as seen, Dr. Covey
did not render an opinion as to impairment. The ALJ discussed the medical
evidence from each doctor and explained why he had discounted the opinions of
Drs. Reyes and Courtney. Dr. Knott was not a treating physician and her opinion
was entitled to little weight, as discussed above. There was no material violation
of 20 C.F.R. § 1527.
The Court has reviewed the entire record, including the briefs, the ALJ's
decision, the transcript of the hearing and the medical and other evidence. There is
ample evidence on the record as a whole that "a reasonable mind might accept as
adequate to support [the] conclusion" of the ALJ in this case. Richardson v.
Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v. Barnhart, 372 F.3d
946, 950 (8th Cir. 2004). The Commissioner's decision is not based on legal error.

THEREFORE, the Court hereby affirms the final determination of the
Commissioner and dismisses Plaintiff's complaint with prejudice.
IT IS SO ORDERED this 26th day of September, 2011.

__________________________________
UNITED STATES MAGISTRATE JUDGE