Todd-Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 6, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DEBORAH MAE TODD-SMITH
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Deborah Mae Todd-Smith, brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claim for supplemental security income (SSI) benefits under the
provisions of Title XVI of the Social Security Act (Act). In this judicial review, the Court must
determine whether there is substantial evidence in the administrative record to support the
Commissioner’s decision. See 42 U.S.C. § 405(g).
Plaintiff protectively filed her current application for SSI on January 29, 2007, alleging
an inability to work since January 1, 1997, due to “Spinal problems, back, legs, knees and toe
problems.” (Tr. 109, 112). An administrative hearing was held on November 18, 2008, at which
Plaintiff appeared with counsel and testified. (Tr. 4-42).
By written decision dated March 5, 2009, the ALJ found that Plaintiff had an impairment
or combination of impairments that were severe - degenerative disc disease of the lumbar spine.
(Tr. 52). However, after reviewing all of the evidence presented, she determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 52). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 416.967(b) except the claimant has frequent
postural limitations and cannot climb ladders, ropes, or scaffolds and should have only
occasional exposure to workplace hazards. The claimant should have no exposure to
airborne irritants and should never work at heights. She should not have transactional
interaction with the public.
(Tr. 53).1 With the help of a vocational expert (VE), the ALJ determined Plaintiff could perform
other work as a machine tender, assembler, or poultry worker. (Tr. 55).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 20, 2011. (Tr. 1-3). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 11, 12).
Plaintiff was born in 1959, completed the 10th grade of school, and never received a
As background information, the records contained in the transcript date back to
September 17, 1997, and between then and the date of the hearing, November 18, 2008, Plaintiff
was involved in three altercations - one in 1997, 1999, and 2008. (Tr. 313-315, 323-327, 466486). Plaintiff also had three back surgeries - one in 1998 and two in 1999. (Tr. 292, 301-302,
304-305, 309). She was also involved in two motor vehicle accidents - one in 2001 and another
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though he weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 416.967(b).
Although the ALJ stated that Plaintiff received her GED, Plaintiff testified at the hearing that she never received
a GED. (Tr. 8).
in 2005. In addition, in 2003, Plaintiff was walking beside a car and was hit. (Tr. 273-283, 416423).
Plaintiff had issues with her back beginning on September 17, 1997 (Tr. 328), and on
January 8, 1998, the impression of the MRI of her lumbar spine revealed:
1. Left L5-S1 disc protrusion/herniation into the left lateral recess and left foramen. It
may actually contact the left L5 nerve root as it exits the foramen, as well the L5 nerve
root in the lateral recess. Clinical correlation recommended.
2. Mild annular bulge L4-L5 without significant central stenosis.
(Tr. 321-322). In a letter dated January 12, 1998, Dr. Jonathan Brewer wrote a letter “To Whom
It May Concern” wherein he stated that Plaintiff had a recent injury which had worsened, as
confirmed by a repeat MRI, and that she would be unable to work. (Tr. 305). He also stated that
Plaintiff would see a neurosurgeon that Friday, so she would need to be off work through then,
when the neurosurgeon would then dictate her status after that day. (Tr. 305).
On May 8, 1998, Plaintiff was seen by Dr. Joseph W. Queeney, a neurosurgeon at Cooper
Clinic Neurosurgery. Once Dr. Queeney reviewed the MRI scan of January 8, 1998, he
recommended obtaining a myelogram with post melographic CT scan. (Tr. 330). Dr. Queeney
performed a left L5-S1 microlaminotomy and microdiskectomy on October 2, 1998. (Tr. 301).
One month after the surgery, Dr. Queeney reported that Plaintiff had been doing quite well and
was not really having much in the way of radicular pain. (Tr. 243). She could lift about 20
pounds and gradually increase this over the next several months. (Tr. 243).
On January 6, 1999, Plaintiff complained to Dr. Queeney of a sudden onset of left lower
extremity pain, primarily located in the left gluteal region and left calf. She also had some
aching in the plantar aspect of her left foot and had paresthesias involving the lateral toes. (Tr.
247). A second surgery was performed by Dr. Queeney in January of 1999, when he performed
a left L4-S1 microlaminotomy, microdiskectomy and re-exploration microdisckectomy. (Tr.
292, 304). On February 11, 1999, Dr. Queeney released Plaintiff back to her primary care
physician. (Tr. 251). According to a report of Dr. Jerry Lenington, of Sparks Regional Medical
Center Pain Clinic, Plaintiff reported having another back surgery in August of 1999. (Tr. 309).
Plaintiff began seeing Dr. Lenington for pain management on December 22, 1999. (Tr.
309-310). Dr. Lenington reported that since Plaintiff’s back surgeries and presently, Plaintiff
reported having low back pain and pain down the posterior and posterolateral aspect of her left
leg, with numbness and burning in her foot. (Tr. 309). He reported that her gait was antalgic,
but that she could walk on her heels and toes without any particular problems. (Tr. 310). Dr.
Lenington diagnosed Plaintiff with radicular pain L5-S1 left side, secondary to post laminectomy
pain syndrome. (Tr. 310). On January 25, 2000, Dr. Lenington reported that he had done one
lumbar epidural steroid injection on Plaintiff, that she had improved, and he gave her another one
that day. (Tr. 307).
On June 19, 2001, Plaintiff reported slipping on a wet floor. X-rays of her left knee
revealed a mild spurring in the patellofemoral joint, with no other osseous or joint abnormalities
being seen. (Tr. 426). X-rays of her cervical spine revealed a disc space narrowing at the C5-C6
level with hypertrophic spurring. The spurs encroached on the neural foraminal bilaterally at the
C5-C6 level, and no fractures or other osseous abnormalities were seen. (Tr. 426). No osseous
or joint abnormalities were seen in the right shoulder or right wrist. (Tr. 426). X-rays of her
lumbar spine revealed a disc space narrowing at the L5-S1 level with hypertrophic spurring and
bony eburnation,3 but no other osseous or joint abnormalites were seen. The upper four disc
spaces had a normal appearance, and it was reported that the degenerative disc disease at the L5S1 level had progressed significantly when compared with films of 1998. (Tr. 426).
On July 27, 2001, Plaintiff presented herself to St. Edward Mercy Medical Center,
complaining of back pain radiating into her left arm. (Tr. 283). She had been in a motor vehicle
accident a week prior thereto, and was assessed with musculoskeletal injury of her left shoulder.
On September 28, 2003, Plaintiff presented herself to Sparks Regional Medical Center,
reporting that she had been hit by a car and was suffering from severe back pain. (Tr. 416). Xrays revealed no fracture in her right tibia and fibula or right shoulder, and three views of her
lumbar spine revealed advanced disc degenerative changes at L5-S1, with mild scoliosis, and no
change since June 19, 2001. (Tr. 420). No osseous abnormality or fracture was reported in her
pelvis or right femur. (Tr. 421-422).
On November 25, 2003, Plaintiff had a MRI of her right knee as a result of a trauma to
her right knee from a fall. (Tr. 414). The diagnosis was leg pain, probably secondary to
degenerative disc disease. (Tr. 415).
On February 5, 2005, Plaintiff was involved in another motor vehicle accident and
presented herself to St. Edward Mercy Medical Center. (Tr. 273-280). She was assessed with:
1. Motor vehicle accident
2. Cerebral concussion
3. Hematoma of the scalp
Eburnation - The conversion of a bone into an ivory-like mass. In osteoarthritis, the thinning and loss of the
articular cartilage resulting in exposure of the subchondral bone, which becomes denser and the surface of which
becomes worn and polished. Dorland’s Illustrated Medical Dictionary 593 (31st ed. 2007).
4. Contusion of the right and left knee
5. Contusion and abrasion of the left wrist
On January 5, 2006, Plaintiff saw Dr. Terry Hoyt, of the Van Buren Family Clinic. She
complained of “ankles swelling,” and wanted a home health aide to help with her housework.
Dr. Hoyt assessed Plaintiff with fibromyalgia and post traumatic stress disorder (PTSD). (Tr.
153). On February 28, 2006, Plaintiff reported to Dr. Hoyt that she wanted a gynecological
consult, and told Dr. Hoyt that she had several people die in her family in the previous couple
of months and that her niece-in-law was sent to prison. (Tr. 152). She was very stressed, had
fever blisters, panic attacks, crying spells, and bad dreams. (Tr. 152). Dr. Hoyt assessed Plaintiff
Acute and chronic ankle spasms
CT strain with SD5
H. Simplex I
(Tr. 152). On April 11, 2006, Plaintiff saw Dr. Hoyt for follow up. He reported that Zanaflex
helped a lot with her spasms and helped her sleep. (Tr. 151). She was still having recurrent back
pain. (Tr. 151). She was also reported as weighing 191 pounds. Dr. Hoyt assessed Plaintiff with
myofascitis6/fibromyalgia, and GAD(generalized anxiety disorder)/PTSD. (Tr. 151). On May
The Court is unsure of what this acronym means.
The Court is unsure of what this acronym means.
Myofascitis -Inflammation of a muscle and its fascia, particularly of the fascial insertion of muscle to bone. Id. at
22, 2006, Plaintiff presented herself to Dr. Hoyt for follow up and was having recurrent swelling
and soreness of her ankle. (Tr. 150). He assessed her with: GAD/PTSD; fibromyalgia; and
effusion/left ankle. (Tr. 150). Plaintiff next presented herself to Dr. Hoyt on November 13,
2006, complaining of having trouble with her medications. She also reported she had been off
Paxil. (Tr. 149). She reported that she was grieving over the death of her boyfriend, which
occurred the previous Friday, and was not sleeping well. She also complained that her knees and
ankles hurt. (Tr. 149). Dr. Hoyt assessed her with: GERD(gastroesophogeal reflux disease);
grief reaction; GAD; and DA (degenerative arthritis) of spine/knees/ankles. He directed
Plaintiff to restart Paxil, and prescribed other medications as well. (Tr. 149).
On January 9, 2007, Dr. Hoyt assessed Plaintiff with: anxiety/depression; allergic
rhinitis; grief reaction; and DA of spine/knees. (Tr. 184). On February 12, 2007, Dr. Hoyt
assessed Plaintiff with: anxiety/depression; fatigue; possible exposure to hepatitis; and DA of
spine/knees/ankles. (Tr. 183).
On February 23, 2007, Dr. Hoyt completed a Medical Source Statement of Ability to do
Work-Related Activities (Mental). (Tr. 161-162). He found Plaintiff had a “Fair” ability to do
certain things, and had “Poor” ability to understand and remember detailed instructions; carry
out detailed instructions; maintain attention and concentration for extended periods; and perform
activities within a schedule, maintain regular attendance, and be punctual. (Tr. 161). He
reported that Plaintiff’s chronic anxiety/depression and post traumatic stress disorder supported
the assessment. (Tr. 162).
Dr. Hoyt also prepared a Medical Source Statement of Ability to do Work-Related
Activities (Physical) on February 23, 2007. (Tr. 163-165). In the statement, he diagnosed
Plaintiff with degenerative arthritis of the spine. (Tr. 163). Dr. Hoyt reported that Plaintiff
could: sit continuously for 1 hour before alternating postures, standing, or walking about; sit for
5 hours during an 8 hour work day, not including time spent standing or walking about; stand
continuously for 1 hour before alternating postures, sitting, or lying down; stand for 2 hours
during an 8 hour work day, not including time spent sitting or lying down; walk continuously
for 30 minutes before alternating postures, sitting, or lying down; walk for 1 hour during an 8
hour work day, not including time spent sitting or lying down; could be on her feet either
walking or standing for a total of 2 hours; could continuously lift 1-5 pounds; frequently lift 6-10
pounds; occasionally lift 11-20 pounds.; never lift 21-50 pounds; could continuously carry 1-5
pounds; frequently carry 6-10 pounds; occasionally carry 11-20 pounds; and never carry 21-50
pounds. (Tr. 163). Dr. Hoyt also found that Plaintiff could use both hands for repetitive action
and both feet for repetitive movements, as in operating foot controls. (Tr. 164). He also found
that Plaintiff was able to occasionally bend, reach above head, and kneel, but could not squat,
crawl, climb, stoop, or crouch at all. (Tr. 164). He concluded that Plaintiff could occasionally
be around moving machinery; be exposed to marked temperature changes; drive automotive
equipment; be exposed to dust, fumes and gases; and be exposed to noise, but not be exposed
to unprotected heights at all. (Tr. 164). Dr. Hoyt found Plaintiff’s pain was moderate to severe,
that Plaintiff would sometimes need to take unscheduled breaks during an 8-hour working shift;
that Plaintiff’s impairments were likely to produce both good and bad days; and that Plaintiff was
likely to be absent from work as a result of the impairments or treatment more than four days per
month. (Tr. 165).
On April 10, 2007, Plaintiff complained to Dr. Hoyt of problems swallowing and
problems with her right wrist. Dr. Hoyt noted that Cymbalta was helping her nerves a lot. Dr.
Hoyt assessed Plaintiff with dysphasia;7 tendonitis/right wrist; and right wrist ganglion cyst. (Tr.
182). On July 13, 2007, Plaintiff complained to Dr. Hoyt that she choked easily and that she
still hurt. Dr. Hoyt assessed Plaintiff with dysphasia with [illegible]; anxiety/depression;
[illegible]; and [illegible] OA. (Tr. 181). On August 28, 2007, Plaintiff reported to Dr. Hoyt that
her stomach problems were much better and that her pain was much better with Roxicodone.
Dr. Hoyt assessed Plaintiff with GERD; anxiety/depression, and osteoarthritis with chronic back
syndrome. (Tr. 180).
On September 4, 2007, three views of Plaintiff’s lumbar spine were taken at Sparks
Medical Plaza. The impression was chronic disc disease at the level of L5-S1 with posterior
spondylolisthesis of L5 on S1. (Tr. 168). Two views of the right knee revealed mild
degenerative changes of the knee, and three views of the cervical spine revealed chronic disc
disease at C5-C6 and C6-C7. (Tr. 168).
On September 17, 2007, Kathleen M. Kralik, Ph.D. conducted a Mental Diagnostic
Evaluation. (Tr. 169-176). She indicated that the collateral information she received and
reviewed was a medical note from November 13, 2006 by Dr. Hoyt, indicating Generalized
Anxiety Disorder and chronic pain, along with grief issues and sleep problems associated with
the death of her boyfriend. (Tr. 169). Dr. Kralik reported that Plaintiff received pain
management many years from Dr. Lenington, who retired, so she now sees Dr. Hoyt. (Tr. 169).
Dr. Kralik noted that Plaintiff alleged she became so depressed now that she had passive suicidal
Dysphasia - Impairment of speech, consisting in lack of coordination and failure to arrange words in their proper
order, due to a central lesion; called also dysphrasia and dysgrammatism. Id. at 587.
ideation. (Tr. 169). Plaintiff reported to Dr. Kralik that she had problems with depression all
her life. (Tr. 170). Dr. Kralik noted that Plaintiff had somewhat of a history of physical
altercations with others (especially females), and that she had an ordeal involving law
enforcement with her children about ten years prior. (Tr. 170). Plaintiff told Dr. Kralik that she
thought the Cymbalta worked the best among all the medications she had taken. (Tr. 170).
Plaintiff also reported that she had been able to cut back on her Valium with the addition of the
Roxicodone, and that Roxicodone worked better for the pain, but made her a little paranoid. (Tr.
170). Dr. Kralik diagnosed Plaintiff as follows:
Pain Disorder Associated with both Psychological Factors
and a General Medical Condition (rule out anxiolytic
and/or narcotic abuse/dependency)
Recurrent Major Depression, Moderate Severity, without
Adjustment Disorder with Mixed Disturbance of
Emotions and Conduct (Increased social avoidance and
failure to keep commitments; and “empty nest” issues)
Attention Deficit Hyperactivity Disorder, combined type
Diagnosis on Axis II deferred (Histrionic, dependent and
probably passive-aggressive personality features, at
Estimated Current GAF:
Estimated Highest GAF Past Year - 61-70
Estimated Typical GAF Past Year - 45-55
(Tr. 174). Dr. Kralik further found that: Plaintiff’s capacity to carry out activities of daily living
and daily adaptive functioning was estimated to be intermittently and sometimes significantly
impaired for occupational purposes; Plaintiff’s capacity to communicate and interact in a socially
adequate manner was estimated to be adequate for occupational purposes; Plaintiff’s capacity
to communicate in an intelligible and effective manner was estimated to be generally adequate
for occupational purposes; Plaintiff’s capacity to cope with the typical mental/cognitive
demands of basic work-like tasks seemed somewhat impaired; but for the most part adequate for
occupational purposes; Plaintiff’s ability to attend and sustain concentration on basic tasks
seemed intermittently impaired for occupational purposes; Plaintiff’s capacity to sustain
persistence in completing tasks seemed problematic; and Plaintiff’s capacity to complete worklike tasks within an acceptable time frame seemed somewhat impaired for occupational purposes.
(Tr. 175-176). Noteworthy is Dr. Kralik’s conclusion that malingering/exaggeration per se was
not evident; “though she may have an exaggerated perception of her symptoms relative to those
experienced by others under similar circumstances (i.e. In examiner’s perception, claimant
seemed here to be coping quite well relative to events over the last year).” (Tr. 176). Dr. Kralik
believed that Plaintiff’s unreliability seemed to be the primary issue impacting Plaintiff’s ability
to engage in occupational endeavors; and an underlying ADHD-like condition could not be ruled
out relative to the educational and functional information Plaintiff provided. Dr. Kralik
concluded: “Unless her medical records (regarding her back and pain issues) suggest otherwise,
overall, claimant seems likely to perceive herself as more impaired (psychologically and
physically) than might objectively be the case.” (Tr. 176).
On September 27, 2007, Dr. Hoyt assessed Plaintiff with: Allergic Rhinitis; GERD;
OA/chronic LBS (lower back syndrome); and Lumbar disorder with radiculopathy. (Tr. 179).
On September 28, 2007, Dr. Brad Williams prepared a Psychiatric Review Technique
form. (Tr. 191-204). Dr. Williams found that Plaintiff had a mild degree of limitation in
restriction of activities of daily living; moderate degree of limitation in difficulties in maintaining
social functioning and concentration, persistence or pace; and no episodes of decompensation.
(Tr. 201). Dr. Williams noted that Plaintiff did not have a marked limitation in activities of daily
living and that the evidence did not establish an impairment of sufficient severity to meet or
equal a listing. He found that Plaintiff retained the ability to perform unskilled work. (Tr. 203).
Also on September 28, 2007, Dr. Williams completed a Mental RFC Assessment. (Tr.
205-208). He found Plaintiff was not significantly limited in 13 out of 20 categories; and was
moderately limited in 7 out of 20 categories. (Tr. 205). He concluded that Plaintiff was able to
perform work where interpersonal contact was incidental to the work performed, e.g. assembly
work; the complexity of tasks was learned and performed by rote, with few variables and little
judgment, and the supervision required was simple, direct and concrete - “Unskilled.” (Tr. 207).
On October 23, 2007, Dr. Ronald Crow completed a Physical RFC Assessment. (Tr.
211-218). Dr. Crow found that Plaintiff could occasionally lift and/or carry (including upward
pulling) 20 pounds; frequently lift and/or carry (including upward pulling) 10 pounds; stand
and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday; sit (with
normal breaks) for a total of about 6 hours in an 8-hour workday; push and/or pull (including
operation of hand and/or foot controls) unlimited, other than as shown for lift and/or carry. (Tr.
212). No postural, manipulative, visual, communicative or environmental limitations were
established. Dr. Crow concluded that the medical records supported a “light RFC.” (Tr. 217).
On January 21, 2008, Dr. Van Hoang conducted a General Physical Examination for the
Social Security Administration. (Tr. 225-231). At that time, Plaintiff was taking Roxicodone,
Valium, Cymbalta, and Flexeril. (Tr. 225). Plaintiff measured at 5'6" tall and weighed 205
pounds. (Tr. 227). Her range of motion in her spine and extremities were all normal; her gait
and coordination were stable, and her limb function was 100%. (Tr. 228-229). Dr. Van Hoang
diagnosed Plaintiff with: chronic low back pain - post spinal surgeries x 3; chronic neck pain cause to be determined; and chronic right knee pain - cause to be determined. (Tr. 231). He
reported Plaintiff had “moderate physical limitation for employment.” (Tr. 231). Three views
of Plaintiff’s lumbar spine taken on January 21, 2008, revealed chronic disc disease L5-S1 unchanged since 9/4/07. (Tr. 232).
On August 8, 2008, Plaintiff presented herself to Sparks Regional Medical Center, and
the reason given for her visit was reported as back pain, “neck structure,” and muscular
pain/spasm in her right shoulder. (Tr. 395). X-ray results revealed no acute cardiopulmonary
disease, degenerative changes of the cervical and thoracic spine with no acute osseous
abnormality, and no acute osseous abnormality of the right shoulder or right scapula. (Tr. 407408). Plaintiff was diagnosed with thoracic pain. (Tr. 400).
On September 25, 2008, an altercation between the maintenance man, his wife and
Plaintiff ensued at Plaintiff’s apartment, during which the maintenance man and his wife beat
and kicked Plaintiff. (Tr. 32). Plaintiff presented to Sparks Regional Medical Center,
complaining of pain in her head, arm, and leg. (Tr. 472). The impression of Plaintiff’s injuries
was: no acute intracranial abnormality; bilateral nasal bone fracture without significant
displacement; fracture involving left orbital floor which may be due to previous injury as there
is no fluid in the left maxillary sinus. A significant degree of left periorbital soft tissue
swelling/hematoma was present. (Tr. 486).
On October 8, 2008, Plaintiff saw Dr. Hoyt, who assessed Plaintiff with: fracture of
facial bones; fracture orbit: GERD; Failed back syndrome; Osteoarthritis; [illegible]. (Tr. 488).
In an undated Disability Report - Adult, Plaintiff reported that when she got up in the
morning, it took her an hour or two to “get moving. Or I’m drugged down from the medication.”
(Tr. 113). She reported that she stopped work on May 17, 1992, because the pain got so hard to
bear, her ankles would swell up if she was on her feet for a period of time, and her knee would
give out on her and she fell. (Tr. 113). In an Undated Disability Report - Appeal, Plaintiff
reported that her pain increased, her range of motion decreased, and that she gained weight. (Tr.
125). She further reported that she was dependent on friends and family for nearly all aspects
of daily living, i.e. cooking, cleaning, laundry, grocery shopping, and yard work. (Tr. 128).
At the hearing held on November 18, 2008, Plaintiff reported that Dr. Hoyt gave her
injections as she needed them, and that her chief complaint of pain was in her low back and neck.
(Tr. 12). She stated that she had spinal injections by Dr. Lenington on a regular basis for her
back pain, and that they worked. (Tr. 13). She further stated that after so long, “they don’t like
to give them to you because they deteriorate the spine.” (Tr. 13). She testified that since the
injections stopped, she had been on several different medications. (Tr. 16). She stated that the
pain started in her lower back and “shoots up” through her neck, into her shoulders, down into
her hip, leg, and her toes. (Tr. 17). Plaintiff stated that the Roxicodone helped the pain but that
she still hurt and did not sleep well. (Tr. 17). She also stated that she had problems with her
knees and ankles. (Tr. 19). She stated that the Flexeril helped her joint pain “a little bit.” (Tr.
20). Plaintiff testified that Dr. Hoyt had been treating her for depression for about five years and
that at that time, she was on Cymbalta. (Tr. 25). She did not know if she felt better - she was
still depressed and had panic attacks. (Tr. 26). She stated that her children helped her around
the house, cooked for her and cleaned the apartment. (Tr. 27). She also stated that she had to
be reminded of things and could not stay focused. (Tr. 31). She testified that she knew how to
read and write, could add and subtract, and keep up with her bills. (Tr. 33-35).
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, 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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “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)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following grounds on appeal: 1) The ALJ erred as it relates to her
findings of severe impairments; 2) The ALJ failed to develop the record as to the Plaintiff’s
RFC; 3) The ALJ improperly discounted the Plaintiff’s subjective complaints of pain; 4) The
ALJ erred as it relates to her assessment of credibility; and 5) The ALJ largely ignored the
Plaintiff’s limitations set out in the RFC of the Plaintiff’s primary care physician. (Doc. 11).
Plaintiff contends that the ALJ ignored Plaintiff’s long-standing treatment for
fibromyalgia, PTSD, GAD, knee and ankle disorders, osteoarthritis, depression, and a shoulder
With respect to the fibromyalgia, the ALJ concluded that the evidence did not confirm
this as a medically determinable impairment. The only physician that diagnosed Plaintiff with
fibromyalgia was Dr. Hoyt, and even though Plaintiff saw Dr. Hoyt numerous times between
January of 2006 through 2008, the fibromyalgia diagnosis was only made by him on January
5, 2006 and May 22, 2006. On January 5, 2006, Plaintiff complained to Dr. Hoyt that her
ankles swelled if she was on her feet too long and that she was falling more and her knees were
buckling. Plaintiff complained of left ankle swelling on May 22, 2006, and Dr. Hoyt reported
she had recurrent swelling and soreness of her ankle. These records do not give a basis for Dr.
Hoyt’s diagnosis of fibromyalgia, or reflect that the usual testing for fibromyalgia was
performed by Dr. Hoyt. Furthermore, no other physician, either examining or non-examining,
diagnosed Plaintiff with fibromyalgia . “A treating source's opinion is to be given controlling
weight where it is supported by acceptable clinical and laboratory diagnostic techniques and
where it is not inconsistent with other substantial evidence in the record.” Shontos v. Barnhart,
328 F.3d 418, 426 (8th Cir.2003), paraphrasing 20 C.F.R. § 404.1527(d)(2). The Court believes
that there is substantial evidence to support the ALJ’s conclusion that the evidence did not
support Dr. Hoyt’s diagnosis of fibromyalgia.
Regarding PTSD, GAD, and depression, the ALJ carefully analyzed Plaintiff’s mental
impairment allegations, concluding that considered singly and in combination, they did not meet
or medically equal the criteria of listings in 12.04 and 12.06. The ALJ concluded that Plaintiff
had no restriction in activities of daily living, moderate difficulties in social functioning,
moderate difficulties with regard to concentration, persistence or pace, and no episodes of
decompensation. This conclusion was consistent with the findings Dr. Brad Williams gave in
his Psychiatric Review Technique, except that Dr. Williams did find Plaintiff had a mild degree
of limitation in restriction of activities of daily living. Dr. Williams concluded that the evidence
did not establish an impairment of sufficient severity to meet or equal the listings, and that
Plaintiff retained the ability to perform unskilled work. In addition, although Dr. Kralik, an
examining mental health specialist, found Plaintiff’s capacity to carry out activities of daily
living and daily adaptive functioning was estimated to be intermittently and sometimes
significantly impaired for occupational purposes, she also believed Plaintiff may have an
exaggerated perception of her symptoms relative to those experienced by others under similar
circumstances. The Court recognizes that Dr. Hoyt concluded in his Medical Source Statement
of Ability to do Work-Related Activities(Mental) that Plaintiff had “Poor” ability to understand
and remember detailed instructions; carry out detailed instructions; maintain attention and
concentration for extended periods; and perform activities within a schedule, maintain regular
attendance, and be punctual. However, Dr. Hoyt specializes in family medicine, whereas Dr.
Kralik is a mental health specialist. See Brown v. Astrue, 611 F.3d 941, 952 (8th Cir.
2010)(holding that “[g]reater weight is generally given to the opinion of a specialist about
medical issues in the area of specialty, than to the opinion of a non-specialist”)(citations
Finally, Plaintiff did not initially allege that her mental impairments were disabling
impairments. See Sullins v. Shalala, 25 F.3d 601, 604 (8th Cir. 1994)(finding it noteworthy that
Plaintiff did not allege a disabling mental impairment in her application for disability benefits).
With respect to Plaintiff’s knee and ankle disorders, osteoarthritis and shoulder disorder,
although Plaintiff complained of such disorders at various times, there is no evidence that these
impairments were severe or that they would significantly limit Plaintiff’s ability to do basic
work activities. On August 8, 2008, diagnostic testing revealed that Plaintiff’s right shoulder
did not have an acute fracture, subluxation, or dislocation. (Tr. 407). An x-ray of Plaintiff’s
right knee taken on September 4, 2007, revealed mild degenerative changes. (Tr. 168).
Regarding Plaintiff’s osteoarthritis, the medical records did not indicate the severity of her OA.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s finding that the only severe impairment is Plaintiff’s degenerative disc disease.
Subjective Complaints and Credibility Analysis (Grounds 3 and 4 of appeal):
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff’s daily
activities; (2) the duration, frequency, and intensity of her pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of her medication; and (5)
functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an
ALJ may not discount a claimant’s subjective complaints solely because the medical evidence
fails to support them, an ALJ may discount those complaints where inconsistencies appear in
the record as a whole. Id. As the Eighth Circuit has observed, “Our touchstone is that [a
claimant’s] credibility is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314
F.3d 964, 966 (8th Cir. 2003).
In this case, the ALJ found that after careful consideration of the evidence, Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, but that Plaintiff’s statements concerning the intensity, persistence and limiting
effects of these symptoms were not credible to the extent they were inconsistent with the RFC
assessment. In making this finding, the ALJ noted that consultative examination showed
normal range of motion with no swelling, normal pulses and normal limb function, and that the
records continued to show Plaintiff’s condition as stable and well controlled with medications.
The ALJ found that the treating physician’s opinions were overly narrow and not consistent
with the objective medical treatment and his treatment records or with the consultative
examinations. She also found that the mental limitations given by the treating physician’s
opinion were not consistent with his own notes or the consultative examination. Accordingly,
the ALJ discounted them.
With respect to Plaintiff’s daily activities, Plaintiff reported that her family basically did
everything for her - including cooking, cleaning, and doing laundry. However, the Court does
not believe the medical evidence supports Plaintiff’s description of her limitations. Again, it
is noteworthy that Dr. Kralik gave Plaintiff a GAF of 51-60, and stated that Plaintiff “may have
an exaggerated perception of her symptoms relative to those experience by others under similar
circumstances.” Dr. Kralik further found that overall, Plaintiff seemed “likely to perceive
herself as more impaired (psychologically and physically) than might objectively be the case.”
Even though a claimant alleges limited activities, the ALJ does not have to believe the
claimant, as the ALJ is in the better position to assess credibility. Brown v. Chater, 87 F.3d
963, 966 (8th Cir. 1996).
As to Plaintiff’s subjective complaints of pain, the record reflects that the ALJ properly
considered the medication and treatment Plaintiff received since her back surgeries, and that no
further aggressive treatment was recommended. The ALJ also considered Plaintiff’s daily
activities and concluded that the medical evidence did not support Plaintiff’s description of her
limitations. In addition, Dr. Kralik’s findings indicate that Plaintiff’s subjective complaints
appeared to be more extreme than the objective evidence indicates. In light of this, as well as
the findings of the examining and non-examining physicians, the Court believes there is
substantial evidence to support the ALJ’s credibility findings.
RFC is the most a person can do despite that person’s limitations.
§404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
description of his limitations. Guilliams, 393 F.3d at 801; Eichelberger v. Barnhart, 390 F.3d
584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as pain are also factored
into the assessment. 20 C.F.R. § 404.1545(a)(3). The Eighth Circuit has held that a “claimant’s
residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must be supported by
medical evidence that addresses the claimant’s ability to function in the workplace.” Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). “The ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.”
The ALJ found that Plaintiff retained the RFC to perform light work with certain
limitations. In making this finding, the ALJ stated that she considered all symptoms and the
extent to which the symptoms could reasonably be accepted as consistent with the objective
medical evidence and other evidence. She also considered opinion evidence in accordance with
the relevant regulations. The ALJ noted that Plaintiff’s degenerative disc disease remained
unchanged since September 2007, that consultative examination showed normal range of
motion with no swelling, normal pulses and normal limb function, that the examination
performed in January of 2008 showed only moderate limitations, that the record from
September 2007 showed no fibromyalgia, that records continued to show Plaintiff’s condition
was stable and well controlled with medications and that the August 2008 report showed no
In her decision, the ALJ did not indicate in the RFC that Plaintiff was limited to
“unskilled” work. She instead stated that Plaintiff “should not have transactional interaction
with the public.” (Tr. 53). However, as discussed below, in her hypothetical question proposed
to the VE, the ALJ did specify that Plaintiff was limited to unskilled work. Accordingly, the
Court believes there is substantial evidence to support the ALJ’s RFC assessment.
Hypothetical Question to VE:
In her hypothetical question to the VE, the ALJ stated:
I’m going to give you an RFC for an individual ...capable of a full range of unskilled,
light work with frequent postural limitations, meaning specifically frequent balancing,
stooping, kneeling, crouching, crawling and climbing of ramps and stairs. No ladders,
ropes or scaffolding. Only occasional exposure to workplace hazards. No work at
heights. Only frequent exposure to airborne irritants and no transactional interaction
with the public. Assume a hypothetical claimant with the same vocational profile and
RFC as the claimant, are there any unskilled occupations such an individual could
(Tr. 36-37). In response, the VE stated that the positions of unskilled machine tenders,
unskilled assemblers, and unskilled poultry workers would be available.
The Court believes the hypothetical question the ALJ proposed to the VE fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). The Court further believes that
the VE’s responses to the hypothetical question constitutes substantial evidence supporting the
ALJ’s conclusion that Plaintiff’s impairments did not preclude her from performing light work
with certain limitations as a machine tender, assembler, and poultry worker. Pickney v. Chater,
96 F.3d 294, 296 (8th Cir. 1996)(testimony from VE based on properly phrased hypothetical
question constitutes substantial evidence).
Accordingly, the Court hereby affirms the ALJ’s decision and dismisses Plaintiff’s case
DATED this 6th day of March, 2012.
Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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