Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 16, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LYNNSEY D. SMITH
Civil No. 2:10-cv-02092
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Lynnsey D. Smith (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any
and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment,
and conducting all post-judgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court
issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff filed disability applications on April 11, 2008. (Tr. 98-107). In her applications,
Plaintiff alleged she was disabled due to seizures. (Tr. 122). At the administrative hearing on April
23, 2009, Plaintiff also alleged she was disabled due to bipolar disorder. (Tr. 18-19). Plaintiff alleged
an onset date of March 27, 2008. (Tr. 98, 105). These applications were denied initially and again
The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”
upon reconsideration. (Tr. 39-42).
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 81-85). An administrative hearing was held on April 23, 2009 in Fort
Smith, Arkansas. (Tr. 7-34). Plaintiff was present and was represented by counsel, Lawrence Fitting,
at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Jim Spragins testified at this hearing. Id.
On the date of this hearing, Plaintiff was twenty-five (25) years old, which is defined as a “younger
person” under 20 C.F.R. § 404.1563(c) (2008), and had completed high school. (Tr. 11).
On September 21, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s disability
applications. (Tr. 46-53). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through June 30, 2011. (Tr. 48, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since her alleged onset date of March 27,
2008. (Tr. 48, Finding 2). The ALJ determined Plaintiff had the following severe impairment:
seizure disorder. (Tr. 48-49, Finding 3). The ALJ also determined none of Plaintiff’s impairments,
singularly or in combination, met the Listing of Impairments in Appendix 1 to Subpart P of
Regulations No. 4 (“Listings”). (Tr. 49, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 49-53, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined, based upon her
review of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that
Plaintiff retained the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that the claimant cannot perform production rate
work, normal seizure precautions are required, and the claimant must be restricted
from exposure to unprotected heights or untended machinery.
(Tr. 49, Finding 5).
The ALJ evaluated Plaintiff’s PRW (“PRW”), and the VE testified at the administrative
hearing regarding this issue. (Tr. 53, Finding 6). Based upon that testimony, the ALJ determined
Plaintiff’s PRW included work as a Certified Nurses’ Assistant (“CNA”), Cashier, and Cook. Id.
The VE also testified that, considering her background, education, work history, and RFC, Plaintiff
would be able to perform this PRW. Id. In accordance with that testimony, the ALJ determined
Plaintiff could perform her PRW and determined Plaintiff had not been under a disability, as defined
by the Act, from March 27, 2008 through the date of her decision or through September 21, 2009.
(Tr. 53, Finding 7).
Thereafter, on September 28, 2009, Plaintiff requested that the Appeals Council review the
ALJ’s unfavorable decision. (Tr. 2-4). See 20 C.F.R. § 404.968. Although the decision by the
Appeals Council is not included in the record, it appears the Appeals Council declined to review this
unfavorable decision on March 21, 2010.2 On June 30, 2010, Plaintiff filed the present appeal. ECF
No. 1. The Parties consented to the jurisdiction of this Court on July 15, 2010. ECF No. 5. Both
Parties have filed appeal briefs. ECF Nos. 11-12. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
Based upon the briefing of the Parties, it does not appear that this issue–whether the Appeals Council
properly considered this request for review– is in dispute.
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
Plaintiff raised the following five points for appeal: (A) the ALJ erred in her Step Four
Analysis; (B) the ALJ erred in her credibility determination; (C) the ALJ erred in developing the
record; (D) the ALJ erred in her RFC determination; and (E) the ALJ erred in evaluating whether
Plaintiff met the requirements of the seizure listing. ECF No. 11. Plaintiff argues that, because of
this error, her case must be reversed and remanded to the SSA. Id. In response, Defendant argues
that the ALJ’s disability determination is supported by substantial evidence in the record, and
Plaintiff’s claims offer no basis for reversal. ECF No. 12.
Step Four Analysis
Plaintiff argues “[t]he record is very confusing and inconsistent as it relates to Step 4
analysis.” ECF No. 11 at 6- 10. Specifically, Plaintiff raises two arguments with regard to the ALJ’s
Step Four determination: (1) whether the ALJ erred by finding she could perform two of her past jobs
that were performed at the medium level and (2) whether the ALJ erred by not evaluating her mental
impairments in determining she could perform her PRW. Id.
First, Plaintiff argues the ALJ improperly determined she could perform two of her past jobs.
Plaintiff argues she is unable to perform these two jobs because she is limited to performing only light
work. In evaluating Plaintiff’s PRW, the ALJ determined Plaintiff retained the ability to perform her
PRW as a CNA (medium, semiskilled), Cashier (light, semiskilled), and Cook (medium, skilled).
(Tr. 53, Finding 6). In evaluating her RFC, however, the ALJ found Plaintiff only retained the ability
to perform light work. (Tr. 49, Finding 5). Thus, Plaintiff is correct that the ALJ improperly found
she retained the RFC to work as a CNA and as a Cook because both of these jobs are performed at
the medium level. The ALJ, however, also found she retained the RFC to perform her PRW as a
Cashier, which is performed at the light level. Thus, the ALJ’s Step Four determination is supported
by this finding, and any error on this issue is harmless error.
Second, Plaintiff argues the ALJ erred by failing to evaluate the impact her alleged mental
impairment–bipolar disorder–had on her ability to perform her PRW. Specifically, Plaintiff claims
the ALJ is required “to make specific findings of fact regarding the mental demands of a claimant’s
past work.” ECF No. 11 at 8. In evaluating Plaintiff’s limitations to determine whether a claimant
can perform his or her PRW, however, the ALJ is only required to include those limitations found
credible. See Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir. 2010). As further outlined below, since
Plaintiff did not meet her burden of establishing her bipolar disorder was even a severe impairment,
the ALJ was not required to evaluate that impairment in determining whether she could perform her
Plaintiff claims the ALJ erred in evaluating her subjective complaints. Plaintiff argues that
she alleged both grand mal seizures and mild or “partial” seizures and that the ALJ improperly
discounted her subjective complaints regarding her “partial” seizures. Plaintiff also alleges the ALJ
erred by finding her subjective complaints regarding her bipolar disorder were not credible.
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) or from 20 C.F.R. § 404.1529 and 20
C.F.R. § 416.929.3 See Shultz v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider are as
follows: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of medication;
and (5) the functional restrictions. See Polaski, 739 at 1322. The factors must be analyzed and
considered in light of the claimant’s subjective complaints of pain. See id.
The ALJ is not required to methodically discuss each factor as long as the ALJ acknowledges
and examines these factors prior to discounting the claimant’s subjective complaints. See Lowe v.
Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly applies these five factors
and gives several valid reasons for finding that the Plaintiff’s subjective complaints are not entirely
credible, the ALJ’s credibility determination is entitled to deference. See id.; Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount Plaintiff’s subjective complaints
“solely because the objective medical evidence does not fully support them [the subjective
complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any inconsistencies,
Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,
983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.
and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998). The
inability to work without some pain or discomfort is not a sufficient reason to find a Plaintiff disabled
within the strict definition of the Act. The issue is not the existence of pain, but whether the pain a
Plaintiff experiences precludes the performance of substantial gainful activity. See Thomas v.
Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In her opinion, the ALJ recited she had complied with the requirements of 20 CFR 404.1529
and 416.929. (Tr. 49). Even though the ALJ mentioned these provisions, and did not recite Polaski,
such an omission does not require reversal. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)
(holding that “[a]lthough the ALJ never expressly cited Polaski (which is our preferred practice), the
ALJ cited and conducted an analysis pursuant to 20 C.F.R. §§ 404.1529 and 416.929, which largely
mirror the Polaski factors”).
Further, the ALJ made the following findings which support her credibility determination: (1)
Plaintiff had few documented seizures; (2) Plaintiff’s treatment was inconsistent and Plaintiff was
non-compliant with medical treatment; (3) Plaintiff had not received treatment for bipolar disorder;
and (4) Plaintiff was able to care for her children and maintain her household despite her alleged
limitations. (Tr. 52). Thus, because her credibility findings are supported by “good reasons,” they
should be affirmed. See Schultz, 479 F.3d at 983 (holding “we will defer to an ALJ’s credibility
finding as long as the ‘ALJ explicitly discredits a claimant’s testimony and gives a good reason for
doing so’”) (internal citation omitted).
Development of the Record
Plaintiff claims the ALJ erred by failing to develop the record on her alleged mental
impairment of bipolar disorder. ECF No. 11 at 12-14. Plaintiff claims she did not receive treatment
for her bipolar disorder, and the record is not fully developed on this issue because she “simply does
not have the money to be going for treatment at various facilities.” Id. at 13. Plaintiff claims that
because she did not have the money to seek this treatment, the ALJ should have sought the treatment
for her: “[g]iven the testimony and lack of resources it would appear incumbent upon the ALJ to at
least inquire by way of a CE as to mental limitations and severity of the same.” Id.
The ALJ has a duty to fully and fairly develop the record. See Snead v. Barnhart, 360 F.3d
834, 836 (8th Cir. 2004). The ALJ is not required to go to great lengths to develop the claimant’s
case, but the ALJ must make an investigation that is not wholly inadequate under the circumstances.
See Battles v. Shalala, 36 F.3d 43, 44-45 (8th Cir. 1994) (internal quotation marks and citation
omitted). In the present action, there is no dispute that Plaintiff did not seek consistent treatment for
her bipolar disorder. Such a failure to seek treatment for an alleged disability indicates Plaintiff’s
impairment was not a severe as she alleges. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995)
(holding “[g]iven his alleged pain, Shannon’s failure to seek medical treatment may be inconsistent
with a finding of disability”) (internal citation omitted).
Plaintiff argues that she did not seek treatment because she could not afford it. ECF No. 11
at 12-14. She argues that, because she could not afford the treatment, the ALJ had the duty to order
the treatment for her or at least have a consultative examination performed to evaluate her bipolar
disorder. Id. However, while the claimant’s failure to obtain medical treatment may be excused due
a lack of funds, that claimant is required to do more than simply allege he or she could not afford the
treatment. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992). Indeed, the claimant is
required to demonstrate that he or she at least sought medical treatment for an alleged disability and
was denied treatment due to a lack of funds. Id. Here, Plaintiff has made no such demonstration.
Thus, based upon the record before her, the ALJ did not err by not further developing the record.
Plaintiff argues the ALJ erred by failing to properly evaluate her seizures when assessing her
RFC. ECF No. 11 at 14-16. Specifically, she claims the ALJ failed to consider the fact she would
need to take unscheduled breaks due to her seizure disorder. Id. Plaintiff also argues that the ALJ
stated she needed “normal seizure precautions” but did not state what those precautions were. Id.
Plaintiff has the burden of establishing her RFC, including the burden of establishing how her
seizures impact her ability to work. See Geoff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005)
(holding “[t]he RFC is used at both step four and five of the evaluation process, but it is determined
at step four, where the burden of proof rests with the claimant”) (internal quotations and citation
omitted). In the present action, Plaintiff has not met this burden. Indeed, Plaintiff’s seizures appear
to be controlled with medication as Plaintiff testified at the administrative hearing that April 23, 2009
that her seizures were treated well with Lamictal.4 (Tr. 24). Further, as the ALJ noted in her opinion,
Plaintiff’s most recent electroencephalogram (EEG) was performed on May 28, 2003 and showed
normal results. (Tr. 51-52, 301). Thus, Plaintiff did not meet her burden of establishing she would
need to take unscheduled breaks due to her seizure disorder.
Plaintiff also alleges the ALJ failed to define for the VE what “normal seizure precautions”
were. ECF No. 11 at 14-16. However, at the April 23, 2009 hearing, the ALJ provided the VE with
a hypothetical question wherein she stated that the individual was capable of the full range of light
work with “normal seizure precautions including no exposure to heights, no exposure to untended
moving machinery, and no production range work.” (Tr. 32) (emphasis added). Thus, the ALJ did
define for the VE what the intended “normal seizure precautions” were.
She testified she had to stop taking Lamictal and had to switch to Depakote because she could no longer
afford Lamictal. (Tr. 24).
Plaintiff claims she meets the requirements for seizure listing 11.03.5 ECF No. 11 at 1617. Listing 11.03 requires a demonstration of the following:
11.03 Epilepsy – nonconvulsive epilepsy (petit mal, psychomotor, or focal),
documented by detailed description of a typical seizure pattern including all
associated phenomena, occurring more frequently than once weekly in spite of at least
3 months of prescribed treatment. With alteration of awareness or loss of
consciousness and transient postictal manifestations of unconventional behavior or
significant interference with activity during the day.
(emphasis added). In this case, for purposes of documentation, Plaintiff has presented her seizure
journal entries. (Tr. 566-584). It appears these entries date from March 27, 2008 through April 12,
While Plaintiff was able to document some of her symptoms in these journal entries, they still
do not provide the level of detail required to establish she meets the requirements of this listing. For
instance, Plaintiff’s entry on May 31, 2008 was the following: “(small seizure) . . . got really dizzy
when I got up out of the chair and had to sit back down.” (Tr. 567). Also, June 1, 2008 on the same
page was as follows: “(small seizure) . . . Matt said that I zoned out while watching TV again. He
was asking me a question and I didn’t answer. I also decided to stop driving.” Id. These
representative entries simply do not provide a sufficient “detailed description of a typical seizure
pattern” to meet this listing. Further, as indicated above, there is a serious question as to whether
Plaintiff’s “3 months of prescribed treatment” of Lamictal would control these symptoms. Thus, this
Court finds the ALJ’s determination that Plaintiff’s impairments did not meet the requirements of any
of the listings, including Listing 11.03, is supported by substantial evidence in the record.
Plaintiff claims in her briefing that she meets the requirements of seizure listing 1.03. ECF No. 11 at 1617. However, the seizure listings are actually stated under 11.02 and 11.03. Thus, this Court presumes Plaintiff
intended to reference these seizure listings.
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 16th day of May, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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