Hann v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on September 2, 2011. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

CRYSTAL M. HANN

PLAINTIFF

v.

Civil No. 10-2130

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Crystal M. Hann, brings this action seeking judicial review, pursuant to 42 U.S.C.
§ 405(g), of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for child supplemental security income (“SSI”) benefits under Title XVI of
the Social Security Act (the “Act”).
Procedural Background:
Plaintiff protectively filed her SSI application on August 17, 2005, alleging disability due to
scoliosis, headaches, and depression. Tr. 19, 46, 53, 82, 136, 145, 159-160. At the time of filing,
Plaintiff was fifteen years old, an adolescent under the Act. Tr. 22.
Plaintiff’s claim was denied initially and on reconsideration. Tr. 46-49, 53-55. An
administrative hearing was held on August 31, 2007. Tr. 399-429. Plaintiff was present at the
hearing and represented by council. Tr. 399-429. The Administrative Law Judge (“ALJ”), in a
written decision dated April 25, 2008, found that: (1) Plaintiff had not engaged in substantial gainful
activity during the relevant time period; (2) Plaintiff suffers from scoliosis, status-postoperative,
headaches, and depression, which constitute severe impairments; (3) although Plaintiff's impairments
are severe, they do not meet or medically equal a listed impairment; and (4) Plaintiff does not have
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extreme or marked limitations in any domain of functioning, and as such, does not have an
impairment(s) that functionally equals a listing. Tr. 16-32. Accordingly, the ALJ concluded Plaintiff
was not disabled from August 17, 2005, the application date, through April 25, 2008, the date of the
ALJ’s decision. Tr. 16-32.
On July 3, 2010, the Appeals Council denied Plaintiff’s request for review, thus making the
ALJ’s decision the final decision of the Commissioner. Tr. 3-10. Plaintiff now seeks judicial review
of that decision.
Factual Background:
I.

Scoliosis
Plaintiff has a history of chronic back pain associated with progressive adolescent idiopathic

scoliosis, which worsened following a pelvic fracture sustained in June 2003. Tr. 173-200, 228-250,
257. In February 2004, Plaintiff underwent posterior spinal fusion and rod placement without
complication. Tr. 228-250. Prior to surgery, Plaintiff had a right thoracic curve from T7-11 of 55
degrees and a left curve from T12-L4 of 45 degrees. Tr. 231-232, 241-242.
Following her spinal surgery, Plaintiff went to the emergency room at Cooper Clinic on
several occasions for pain and numbness in her hips, groin area, and thighs. Tr. 189-190, 210-227.
X-rays revealed a 20 degree residual curve in the thoracic and thoracolumbar regions with no
complications noted. Tr. 227. A lumbar CT scan revealed normal positioning of hardware without
encroachment into the spinal canal or near any major vascular structures. Tr. 222-223. R. Dale
Blasier, M.D., Plaintiff’s orthopedist, released her to return to school. Tr. 225.
In August 2004, six months post surgery, Plaintiff presented to Children’s Hospital with
complaints of numbness along the right thigh. Tr. 200-202. On examination, Plaintiff had an
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excellent gait, excellent range of motion with full flexion and extension of the spine and side to side
bending. Tr. 200. Her lower extremity examination was within normal limits, except for some
numbness along the anterior thigh on the right side. Tr. 200. Plaintiff was neurovascularly intact
elsewhere with good strength and normal reflexes. Tr. 200. X-rays revealed well-placed hardware
with well-maintained correction. Tr. 200. Although Plaintiff’s mother described her activities as
extremely limited, Plaintiff reported that she was able to ride horses over the summer with no
problems whatsoever. Tr. 200. David Wassell, M.D., cleared Plaintiff for any and all physical
activities, noting that her only limitation was when she chose to limit herself. Tr. 200.
A nerve conduction study was performed at University of Arkansas for Medical Sciences
(“UAMS”) on September 27, 2004. Tr. 254-255. Results showed mild slowing of the right femoral
cutaneous sensory neuropathy with a normal amplitude, suggesting mild demyelination in the right
femoral cutaneous nerve without evidence of axonal loss. Tr. 254. Plaintiff’s neurologist gave a
good prognosis for recovery. Tr. 254.
On November 12, 2004, Plaintiff saw Rick W. Harrison, M.D., for a physical examination.
Tr. 251-265, 305-306. Plaintiff presented with complaints of chronic back pain and numbness in her
legs. Tr. 251. X-rays of Plaintiff’s spine revealed thoracolumbar scoliosis with a lumbar curvature
of 37 degrees, a dorsal curvature of 25 degrees, and rod placement. Tr. 258. On examination, Dr.
Harrison stated Plaintiff could not really bend over, but she did have obvious scoliosis. Tr. 252.
Passive range of motion was within normal limits in all bones and joints tested. Tr. 252. Plaintiff
was neurologically intact. Tr. 252. Deep tendon reflexes were 1+ and symmetric at the biceps and
negative at the triceps, patella, and Achilles. Tr. 252. No muscle weakness, atrophy, or sensory
abnormalities were noted. Tr. 252. Gait and coordination were normal and Plaintiff was able to
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heel-toe walk and squat and rise from a squatting position. Tr. 252, 263. Dr. Harrison noted that
Plaintiff had a flat affect, suggesting possible depression. Tr. 252. He found that Plaintiff’s ability
to engage in age appropriate activities of daily living was somewhat restricted, although he was
unsure whether the limitation was psychological or organic in nature. Tr. 252, 265. He further noted
that Plaintiff had a normal ability to perform daily activities in the office. Tr. 252.
In early 2005, Plaintiff saw Richard McCarthy, M.D., for back, knee, and hip pain and
numbness. Tr. 388-393. Dr. McCarthy noted marked improvement in Plaintiff’s spinal curves and
spinal balance postoperatively. Tr. 392-393. A bone scan revealed a solid fusion mass. Tr. 391.
Dr. McCarthy found that Plaintiff’s poor nutrition coupled with nicotine exposure from her parents
put her at high risk for development of pseudoarthrosis, which could be the cause of her back pain.
Tr. 393. He also noted that Plaintiff’s numbness in the lateral femoral cutaneous nerve would
gradually improve over time and was due “purely to positioning at the time of surgery.” Tr. 393.
He recommended increased stretching and back strengthening exercises, proper diet, and avoidance
of secondhand smoke. Tr. 391-393.
Due to residual back pain, Plaintiff had her surgical rod implants removed in August 2005.
Tr. 272-278. Following surgery, Plaintiff stated she was doing much better. Tr. 296. In October
2005, Plaintiff’s mother reported that Plaintiff had returned to a “normal state of affairs” and could
participate in any activity. Tr. 385. X-rays showed good alignment, good balance, and solid fusion.
Tr. 385.
At the initial determination level, S.A. Whaley, M.D., an agency physician, reviewed
Plaintiff’s medical records and determined that her impairments did not meet, medically equal, or
functionally equal a listing. Tr. 319-323. He found no limitation in the domains of acquiring and
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using information, attending and completing tasks, interacting and relating with others, and caring
for yourself, and less than marked limitation in the domains of moving about and manipulating
objects and health and physical well-being. Tr. 321-322.
At the reconsideration level, S. Manley, M.D., an agency physician, determined that Plaintiff
had no limitation in the domains of acquiring and using information, attending and completing tasks,
and caring for yourself, and less than marked limitation in the domains of interacting and relating
with others, moving about and manipulating objects, and health and physical well-being. Tr. 324329. Dr. Whaley noted the following: (1) despite being placed on depression medication, Plaintiff
was never referred for mental health treatment; (2) the medical evidence of record does not indicate
any further back pain following rod removal surgery in August 2005; and (3) Plaintiff’s reported
headaches only lasted one hour and either resolved spontaneously or with Tylenol. Tr. 326-327.
In September 2006, Plaintiff presented to Johnson Regional Medical Center with complaints
of right hip, back, and knee pain. Tr. 338-346. She was reportedly having trouble with her gait and
was wearing a knee brace. Tr. 339. On examination, Plaintiff had no edema of the knee and no point
tenderness. Tr. 339. X-rays of Plaintiff’s knee and hips were negative. Tr. 339-340. Joseph C.
Kradel, M.D., prescribed Tylenol with codeine and ibuprofen for pain. Tr. 330.
On March 19, 2007, Plaintiff was admitted to Children’s Hospital for iliac crest bone grafting
and re-instrumentation of the posterior spine with repair of pseudoarthrosis at levels T8-9, T11-12,
and L3-4, which she tolerated well. Tr. 348-366, 370-372, 383-384. Following surgery, Plaintiff
was neurovascularly intact to motor strength and sensation in her back and lower extremities. Tr.
371. She was discharged on March 22, 2007, with arrangements for home physical therapy. Tr. 371.

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Dr. McCarthy released Plaintiff to return to school “as tolerated” on April 2, 2007. Tr. 395. He
noted that Plaintiff might not be able to complete a whole day. Tr. 395.
Following her surgery, Plaintiff saw Dr. McCarthy for routine check-up appointments. Tr.
380-397. In April 2007, Plaintiff’s pain was less and she was able to bend forward and backward
without difficulty.

Tr. 380.

X-ray imaging showed good alignment and treatment of the

pseudoarthrosis. Tr. 380, 382. There was some residual scoliotic curvature. 381. Plaintiff’s mother
complained of leg inequality, but Dr. McCarthy found no evidence of leg length disparity. Tr. 381.
Dr. McCarthy noted that Plaintiff was “doing fine” and was in the early phases of recovery. Tr. 382.
He encouraged Plaintiff to continue walking. Tr. 382.
On July 25, 2007, four months post-surgery, Plaintiff reported that she had returned to work
on a part-time basis and was sweeping and doing other activities. Tr. 397. Dr. McCarthy noted that
Plaintiff was “really significantly better than she has been in the past.” Tr. 397. On examination,
Plaintiff had a reasonable range of motion. Tr. 397. X-rays revealed intact instrumentation and
evidence of early healing. Tr. 397. Dr. McCarthy told Plaintiff she could continue with her
activities. Tr. 397. In August 2007, however, Dr. McCarthy completed a note stating that Plaintiff
could not return to work until October 31, 2007. Tr. 394.
In a letter dated August 30, 2007, Mark Siebenmorgen, Plaintiff’s high school principal,
reported that Plaintiff had missed several weeks of school due to her recent back surgery and had
become a homebound student at the end of the 2006-2007 school year. Tr. 167. However, at the
time of the administrative hearing, Plaintiff testified that she had returned to school on a full-time
basis. Tr. 415.

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II.

Headaches and Depression
Plaintiff also has a history of depression and headaches. In March and April 2006, Plaintiff

saw Bobby Noonan, M.D., for migraine headaches. Tr. 315-318. Plaintiff reported severe,
progressive headaches for the past two or three months. Tr. 315. Dr. Noonan noted that Plaintiff
appeared mildly depressed. Tr. 315. He gave Plaintiff a prescription for Prozac for depression and
Maxalt for complex tension-type migraine headaches. Tr. 316. MRIs of Plaintiff’s brain, performed
on May 3, 2005, and April 6, 2006, were normal. Tr. 346. In December 2006, Plaintiff returned for
treatment of depression and migraines. Tr. 377. Plaintiff stated that her migraines had improved,
but she still experienced headaches about once every week to two weeks. Tr. 377. Dr. Noonan noted
that Plaintiff had not been taking her antidepressant medication faithfully. Tr. 377-378. He
prescribed Midrin for headaches, Zoloft for depression, and referred Plaintiff for family counseling.
Tr. 378.
At a follow-up appointment with Dr. Noonan, Plaintiff reported continual depression. Tr.
370, 373. Dr. Noonan discussed different methods of dealing with depression, including exercise,
diet, and maintaining social contact. Tr. 373. He also noted that Plaintiff had not remained
compliant with her medication. Tr. 375, 377.
Applicable Law:
The court’s role on review is to determine whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
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evidence is substantial, the court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions represents
the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d 614, 617
(8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be disabled under the Act, a child must prove that she “has a medically determinable
physical or mental impairment, which results in marked and severe functional limitations,” and
which has lasted or can be expected to last for at least twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i);
20 C.F.R. § 416.906. In determining whether a claimant under the age of eighteen is disabled, the
ALJ undertakes a sequential three-step evaluation. Moore ex rel. Moore v. Barnhart, 413 F.3d 718
(8th Cir. 2005); 20 C.F.R. § 416.924(a). The ALJ first determines whether the child is engaged in
substantial gainful activity. 20 C.F.R. § 416.924(b). If the child is so engaged, she will not be
awarded SSI benefits. Id. At the second step, the ALJ determines whether the child has an
impairment or combination of impairments that is “severe.” 20 C.F.R. § 416.924(c). To be deemed
severe, an impairment must be more than “a slight abnormality . . . that causes no more than minimal
functional limitations." Id. At the final step, the ALJ determines whether the child has an
impairment or impairments that meet, medically equal, or functionally equal a listed impairment.
20 C.F.R. § 416.924(d).
The claimant has the burden of showing that his impairment meets or equals a listing.
Jackson v. Astrue, 314 Fed. Appx. 894, 895 (8th Cir. 2008) (citing Johnson v. Barnhart, 390 F.3d
1067, 1070 (8th Cir. 2004)). To meet a listing, an impairment must meet all the specified criteria.
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Id. A child’s impairment medically equals a listed impairment if it “is at least equal in severity and
duration to the medical criteria of the listed impairment.” 20 C.F.R. § 416.926(a); Neal ex rel.
Walker v. Barnhart, 405 F.3d 685, 689 (8th Cir. 2005). Even if a child’s impairments do not meet
a listing, he will be awarded benefits if his impairments “functionally” equal a listed impairment.
20 C.F.R. § 416.926a(a). To determine whether an impairment functionally equals a disability
included in the Listings, the ALJ must assess the child's developmental capacity in six specified
domains. 20 C.F.R. § 416.926a(b)(1). The six domains are: (1) acquiring and using information;
(2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for yourself; and, (6) health and physical well-being. 20 C.F.R. §
416.926a(b)(1); see also Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 722 n. 4 (8th Cir. 2005).
To functionally equal a listing, an impairment must result in “marked” limitations in two domains
of functioning or an “extreme” limitation in one domain. 20 C.F.R. § 416.926a(a).
A marked limitation is an impairment that seriously interferes with the child’s ability to
independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(i). It is “more than
moderate" but "less than extreme." Id. An extreme limitation is defined as “more than marked,” and
exists when a child’s impairment(s) interferes very seriously with his ability to independently initiate,
sustain or complete activities. 20 C.F.R. § 416.926a(e)(3)(i). Day-to-day functioning may be very
seriously limited when an impairment(s) limits only one activity or when the interactive and
cumulative effects of the impairment(s) limit several activities. Id.
In determining the degree of limitation in each of the six domains, the ALJ is required to
analyze the child’s subjective complaints in accordance with the seven factors from 20 C.F.R. §
416.929(c). Specifically, the ALJ must consider these factors: (1) the child’s daily activities; (2) the
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location, duration, frequency, and intensity of the child’s pain or other symptoms; (3) the
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of the child’s
medication; (5) treatment, other than medication, that the child receives or has received for relief of
pain or other symptoms; (6) any measures the child uses or has used to relieve his or her pain or other
symptoms; and (7) other factors concerning the child’s functional limitations or restrictions due to
pain or other symptoms. See 20 C.F.R. § 416.929(c)(3); Polaski v. Heckler, 739 F.2d 1320 (8th Cir.
1984. The ALJ is not required to methodically discuss each factor as long as the ALJ acknowledges
and examines those factors prior to discounting the subjective complaints regarding the child’s
functional limitations. See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000).
Discussion:
Plaintiff contends the Commissioner's decision is not supported by substantial evidence.
Specifically, Plaintiff raises the following issues: (1) whether the ALJ properly considered all of her
combined impairments in his functional equivalency determination; and (2) whether the ALJ
improperly dismissed her subjective complaints of pain. See Pl.’s Br. 17-21.
I. Functional Equivalency
Plaintiff argues that the ALJ failed to consider all of her combined impairments in his
functional equivalency analysis. See Pl.’s Br. 17-20. The court disagrees. The ALJ found that
Plaintiff had severe impairments related to scoliosis (postoperative), headaches, and depression. Tr.
22. However, he found that Plaintiff’s impairments did not meet, medically equal, or functionally
equal a listed impairment, as he found no limitation in the domains of acquiring and using
information, attending and completing tasks, and caring for yourself, and less than marked limitation
in the domains of interacting and relating with others, moving about and manipulating objects, and
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health and physical well-being. Tr. 27-32. The ALJ gave a thorough overview of Plaintiff’s medical
records and expressly stated that he considered Plaintiff’s “combination of impairments” in making
his determination. Tr. 23. As such, Plaintiff’s argument is without merit.
A. Acquiring and Using Information
This domain considers how well a claimant acquires or learns information, and how well she
uses the information learned. 20 C.F.R. § 416.926a(g). Plaintiff’s mother made no allegation of
limitation in this domain, and Plaintiff testified at the hearing that she has no trouble keeping up in
school or completing her homework. Tr. 100, 116, 157, 422. As such, the record supports the ALJ’s
conclusion that Plaintiff has no limitation in the domain of acquiring and using information.
B. Attending and Completing Tasks
This domain considers how well a child is able to focus and maintain attention, and how well
she is able to begin, carry through, and finish activities, including the pace at which she performs
activities and the ease of changing activities. 20 C.F.R. 416.926a(h). In child function reports,
Plaintiff’s mother listed “no impairment” in the area of attention and concentration. Tr. 103, 119,
131, 158. Additionally, although Plaintiff reported having trouble sitting still and concentrating at
school, she also testified that she was able to complete her homework and assignments without
difficulty. Tr. 422. In September 2004, Becky Hern, the school nurse, found that Plaintiff had no
difficulty with concentration, persistence, or pace. Tr. 131. For these reasons, substantial evidence
supports the ALJ’s determination that Plaintiff has no limitation in this domain of functioning.
C. Interacting and Relating with Others
In assessing a claimant’s limitations in the domain of interacting and relating with others, the
ALJ considers how well the child initiates and sustains emotional connections with others, develops
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and uses the language of the community, cooperates with others, complies with rules, responds to
criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i); Garrett
ex rel. Moore v. Barnhart, 366 F.3d 643, 654 (8th Cir. 2004). The ALJ found that Plaintiff has less
than marked limitation in the domain of interacting and relating with others. Tr. 28-29.
Plaintiff has a history of depression, for which she was prescribed Zoloft and Prozac. Tr.
315-318, 370, 373, 377-378. In December 2006, Plaintiff complained that her antidepressants were
not effective, but admitted that she had not taken her medication faithfully. Tr. 377-378. Dr.
Noonan counseled Plaintiff on proper diet, exercise, and maintaining social contact. Tr. 373, 378.
He also prescribed Prozac and referred Plaintiff for family counseling. Tr. 373, 378. There is no
evidence that Plaintiff complied with Dr. Noonan’s suggestions or received any formal mental health
treatment. Tr. 378.
In child function reports, Plaintiff’s mother noted that Plaintiff’s impairment did not affect
her social activities or behavior, except she could no longer play group sports. Tr. 101, 117, 156.
At the hearing, Plaintiff testified that her friends visited her at home and she went to a movie a few
weeks prior to the hearing. Tr. 420.
Although Plaintiff suffers from depression, she maintains close friendships and has exhibited
no behavioral problems at home or at school. Furthermore, she did not seek formal mental health
treatment or take her medications as prescribed. For these reasons, the overall evidence of record
supports the ALJ’s determination that Plaintiff has less than marked limitation in this domain.
D. Moving About and Manipulating Objects
This domain considers how well a child is able to move her body from one place to another
and how a child moves and manipulates objects. 20 C.F.R. § 416.926a(j). The ALJ found that
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Plaintiff has less than marked limitation in the domain of moving about and manipulating objects.
Tr. 29-30.
Plaintiff has undergone three surgeries on her back. Tr. 228-250, 272-278, 348-366. At the
administrative hearing, Plaintiff testified that she could not attend regular physical education classes
and participate in group sports. Tr. 423-424. She wrote sports reports and walked younger children
across the street to earn her physical education credits. Tr. 423-424. She was temporarily home
schooled following her surgeries, but later returned to school full-time. Tr. 416. She worked parttime as a cashier in July 2007. Tr. 426-427.
Although Plaintiff undoubtedly has limitations in this area of functioning, the evidence of
record demonstrates that her symptoms improved over time. Six months after her first surgery,
Plaintiff reported being able to ride horses with “no problems whatsoever.” Tr. 200. Additionally,
although Plaintiff experienced some initial numbness in her hips and legs, an EMG study showed
only mild slowing of the right femoral cutaneous nerve, with no axonal loss, and Dr. McCarthy noted
that Plaintiff’s numbness was due to surgical positioning and would gradually improve with time.
Tr. 254, 393. Following Plaintiff’s rod removal surgery, her mother reported that she had returned
to a “normal state of affairs” and could participate in any activity, including barrel racing. Tr. 296,
385, 427. X-rays showed good alignment, balance, and solid fusion. Tr. 385.
After developing progressive knee and hip pain, Plaintiff underwent surgery to repair
pseudoarthrosis at three levels. Tr. 348-366. The surgery was successful, and Plaintiff was released
to school “as tolerated” on April 2, 2007. Tr. 395. In April 2007, Plaintiff reported that her pain was
less and she was able to bend forward and backward without difficulty. Tr. 380. X-rays showed
good alignment and treatment of the pseudoarthrosis. Tr. 380, 382. Dr. McCarthy noted that
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Plaintiff was “doing fine” and encouraged her to continue walking. Tr. 382. In July 2007, Plaintiff
was working part-time and was doing other activities, including sweeping. Tr. 397. Dr. McCarthy
noted that Plaintiff was “really significantly better than she has been in the past.” Tr. 397. On
examination, she had reasonable range of motion. Tr. 397. Dr. McCarthy allowed Plaintiff to
continue with her activities, but later completed a note releasing her from work until October 31,
2007. Tr. 394. However, this restriction was temporary and there is no indication that Plaintiff was
restricted from activity beyond this date. For these reasons, substantial evidence supports the ALJ’s
determination that Plaintiff has less than marked limitation in the domain of moving about and
manipulating objects.
E. Caring for Yourself
This domain considers how well a child maintains a healthy emotional and physical state,
including how well a child satisfies her physical and emotional wants and needs in appropriate ways,
how well the child copes with stress and changes in the environment, and whether the child takes
care of his own health, possessions, and living area. 20 C.F.R. § 416.926a(k). The ALJ found that
Plaintiff has no limitation in this domain of functioning. Tr. 30-31.
In her initial child function reports, Plaintiff’s mother indicated that Plaintiff had no trouble
taking care of her personal needs, including taking care of hygiene, cooking a meal, taking her
medication, and asking for help when needed, but she did not wash or put away her clothes or help
out around the house. Tr. 102, 118, 156-157. There are no other allegations of limitation in this
domain. As such, the court concludes that substantial evidence supports the ALJ’s determination
that Plaintiff has no limitations with regard to caring for herself.

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F. Health and Physical Well-Being
This domain considers the cumulative physical effects of physical and mental impairments
and any associated treatments or therapies on a child’s functioning that were not considered in the
evaluation of the child’s ability to move about and manipulate objects. 20 C.F.R. 416.929a(l). The
ALJ found that Plaintiff has less than marked limitation in the domain of health and physical wellbeing. Tr. 31-32.
Plaintiff testified that she takes her pain medication at night because it causes drowsiness.
Tr. 418-419. She also has a history of headaches, for which Dr. Noonan prescribed Maxalt and
Midrin. Tr. 316, 378. In December 2006, Plaintiff reported that her migraines had improved and
she was only experiencing them once every week to two weeks. Tr. 377-378. Plaintiff’s headaches
are presumably controlled with medication, as there are no further migraine complaints contained
in the record.
After reviewing the transcript, the court finds that substantial evidence supports the ALJ’s
determination that Plaintiff has less than marked limitation in the domain of health and physical wellbeing.
II.

Subjective Complaints
Plaintiff contends the ALJ made an insufficient credibility determination. See Pl.’s Br. 18-20.

The court disagrees. When evaluating a claimant’s subjective allegations of pain, the ALJ must
consider all evidence relating to: (1) the claimant’s daily activities; (2) the duration, frequency and
intensity of the pain; (3) any precipitating and aggravating factors; (4) the dosage, effectiveness and
side effects of medication; and (5) any functional restrictions. Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). The ALJ “may not discount a claimant’s allegations of disabling pain solely
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because the objective medical evidence does not fully support them.” Medhaug v. Astrue, 578 F.3d
805, 816 (8th Cir. 2009) (quoting Goff, 421 F.3d at 792). However, subjective complaints may be
discounted if there are inconsistencies in the medical evidence as a whole. Id. A court “will not
disturb the decision of an ALJ who considers, but for good cause expressly discredits, a claimant’s
complaints of disabling pain.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (quoting
Goff, 421 F.3d at 792).
It is well-settled that an ALJ need not explicitly discuss each Polaski factor; it is “sufficient
if he acknowledges and considers those factors before discounting a claimant’s subjective
complaints.” Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009) (quoting Strongson v. Barnhart,
361 F.3d 1066, 1072 (8th Cir. 2004)).1 In discounting Plaintiff’s subjective complaints, the ALJ
noted an overall improvement in Plaintiff’s symptoms with surgery, medication, and physical
therapy. Tr. 25; Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (“impairments that are
controllable or amenable to treatment do not support a finding of total disability”). After her second
surgery, Plaintiff had returned to a “normal state of affairs” and could participate in any activity. Tr.
385. X-rays showed good alignment, good balance, and solid fusion. Tr. 385. Following her third
surgery, Dr. McCarthy noted that Plaintiff was “doing fine” and was “really significantly better than
she has been in the past.” Tr. 397. In August 2007, Dr. McCarthy wrote a note restricting Plaintiff
from work until October 31, 2007, so she could fully heal. Tr. 394. However, there are no further
records from Dr. McCarthy indicating that these restrictions were more than temporary in nature.

1

Plaintiff argues that the ALJ failed to reference Polaski in his opinion. See Pl.’s Br. 19. This argument
has no merit. The ALJ fully discussed and considered Plaintiff’s symptoms in accordance with 20 C.F.R. §
416.929 and SSR 96-7p, which encompass the Polaski factors.

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The medical evidence also supports the ALJ’s conclusion that Plaintiff’s headaches improved
with the use of medication. Tr. 26, 377. In December 2006, Plaintiff reported that her migraines had
improved and she was only experiencing headaches once every week to two weeks. Tr. 377;
Medhaug, 578 F.3d at 816 (an impairment is not considered disabling if it is adequately controlled
with medication).
The ALJ further noted that Plaintiff’s failure to seek mental health treatment was inconsistent
with her allegations of disabling depression. Tr. 26; Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir.
1999) (claimant failed to maintain a consistent treatment pattern for her alleged mental impairments).
Dr. Noonan referred Plaintiff for family therapy, but there is no evidence that she ever sought
professional mental health treatment. Tr. 378. Moreover, Dr. Noonan consistently noted that
Plaintiff was noncompliant with her depression medication, and, unlike the circumstances in PateFires v. Astrue, 564 F.3d 935 (8th Cir. 2009), there is no evidence that Plaintiff’s noncompliance was
a result of her mental illness. Tr. 377-378; see Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010)
(claimant’s failure to take her depression medication was unjustified when there was no evidence
that her noncompliance was a manifestation of her mental illness).
With regard to activities of daily living, the ALJ noted that Plaintiff rode horses, participated
in barrel racing, and worked on a part-time basis during the period for which she claimed disability.
Tr. 25-26, 200, 385, 397; Halverson v. Astrue, 600 F.3d 922, 928 (8th Cir. 2010) (claimant’s
allegations of employment-related difficulties were inconsistent with her ability to travel, visit
friends, go shopping, and care for her activities of daily living). Finally, the objective evidence of
record simply does not support the alleged severity of Plaintiff’s impairments. Hutton v. Apfel, 175
F.3d 651, 655 (8th Cir. 1999) (absence of objective medical evidence to support claimant’s
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complaints). Contrary to Plaintiff’s blanket assertion that she is unable to participate in any
activities, multiple progress notes reveal that her symptoms were continually improving. Tr. 200,
296, 382, 397.
Plaintiff’s medical history, reported activities, and her improvement with treatment and
medication cast doubt on the validity of her testimony. Here, the ALJ cited the proper standard,
considered the factors in conjunction with Plaintiff’s testimony, and then properly discounted her
subjective complaints. Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (“we defer to an ALJ’s
credibility determinations if they are supported by valid reasons and substantial evidence”). For
these reasons, substantial evidence supports the ALJ’s decision to discredit Plaintiff’s subjective
complaints.
Conclusion:
Based on the forgoing, then undersigned finds that there is substantial evidence to support
the ALJ’s determinations at all three steps of the sequential analysis. Accordingly, Plaintiff’s
complaint is dismissed with prejudice.
DATED this 2nd day of September 2011.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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