Line v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on July 30, 2012. (sh)

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

PLAINTIFF

v.

CASE NO.

11-2117

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). 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).
I.

Procedural Background:
The plaintiff filed her applications for DIB and SSI on AUGUST 29, 2008 (T. 132),

alleging an onset date of February 13, 2008 (T. 152), due to plaintiff’s back pain, numbness from
his hips down, COPD and asthma (T., 156). Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff then requested an administrative hearing, which was held on December
2, 2009. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 57 years of age and possessed a
high school education. The Plaintiff had past relevant work (“PRW”) experience as a water

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meter reader, street sign repairer, and branch manager (T. 163).
On May 4, 2010, the Administrative Law Judge (“ALJ”) concluded that, although severe,
plaintiff’s tremor in his right hand, past superior endplate compression of the lumbar spin and
alcohol addition in remission did not meet or equal any Appendix 1 listing. T. 14. The ALJ
found that plaintiff maintained the residual functional capacity (“RFC”) to perform the full range
of light work except that he should perform no work requiring more tank frequent handling,
frequent balancing, or, occasional fine manipulation, occasional exposure to unprotected heights,
or occasional climbing of ladders, ropes, or scaffolds. T. 15. The ALJ then determined that the
Plaintiff was capable of performing his past relevant work as a meter reader and found him to
not be disabled (T. 20).
II.

Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by

substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
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decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 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)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III.

Discussion:
The ALJ found that plaintiff maintained the residual functional capacity (“RFC”) to
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perform the full range of light work1 except that he should perform no work requiring more tank
frequent handling, frequent balancing, or, occasional fine manipulation, occasional exposure to
unprotected heights, or occasional climbing of ladders, ropes, or scaffolds. T. 15.
A. RFC
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). 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 descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); 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 United States Court of Appeals for 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering

1

Light work is defined by the DOT as exerting up to 20 pounds of force occasionally, and/or up to 10
pounds of force frequently, and/or a negligible amount of force constantly to move objects.... Even though the weight
lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to
a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg
controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or
pulling of materials even though the weight of those materials is negligible. See Page v. Astrue, 484 F.3d 1040,
1044 (C.A.8 (Ark.),2007)

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medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
1. Evaluation of Treating Physician
The Plaintiff first contends that the ALJ committed error in discounting the evaluation of
Dr. Asbury (ECF No. 11, p. 6) attending physician statement submitted on September 5, 2008
which stated that he first treated Plaintiff on April 30, 2004; Diagnosed him with: tremors,
neuropathy, COPD; stated that the Plaintiff would need to take unscheduled breaks during an 8
hour work shift; that his condition was likely to produce good and bad days; that on average,
Plaintiff was likely to be absent from work as a result of the impairments or treatment about 4
days per month; that he expected a fundamental or marked change for the better in the future;
that the Plaintiff could not use his hands for repetitive action such as fine manipulation but could
use them for simple grasping and pushing and pulling; and that the Plaintiff could use both feet
for repetitive movements. (T. 210).
The ALJ found that the attending physician’s statement completed by Dr. Asbury on
September 5, 2008 was “not supported by medically acceptable clinical and laboratory diagnostic
techniques” and that his opinions were, therefore, conclusory. T. 19 A treating physician's
medical opinion is given controlling weight if that opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
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substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). These opinions are not
automatically controlling, however, because the record must be evaluated as a whole. Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will uphold an ALJ's decision to discount or
even disregard the opinion of a treating physician where “other medical assessments are
supported by better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.” Id. at 920-21 (internal
quotations omitted).
Dr. Asbury states that he has treated the Plaintiff since April 30, 2004 but the first
evidence of treatment is a medical record on January 10, 2008 when the Plaintiff came to Dr.
Asbury for a physical exam. The history of present illness reflects an emotional state over
personal and family matters in the Plaintiff’s life. The doctor’s assessment was depression,
anxiety, smoking and alcohol abuse and he was placed on Prozac2 20 mg and Atarx3 50 mg and
told to quit smoking and decrease his alcohol consumption. (T. 217).
On February 7, 2008 the Plaintiff saw Dr. Asbury for a loss of appetite, weight loss and
tremors. Dr. Asbury diagnosed the Plaintiff with alcohol abuse, dysphagia4, and chronic
obstructive pulmonary disease. His plan was for the Plaintiff to quit drinking, Ativan, CT of the
abdomen, Prevacid5, and he ordered an EGD. (T. 216). The EGD was unremarkable except for

2

Prozac (fluoxetine) is a selective serotonin reuptake inhibitors (SSRI) antidepressant. Prozac affects
chemicals in the brain that may become unbalanced and cause depression, panic, anxiety, or obsessive-compulsive
symptoms.
3

Atarax is used as a sedative to treat anxiety and tension.

4

Dysphagia is difficulty eating because of disruption in the swallowing process.

5

Prevacid decreases the amount of acid produced in the stomach. Prevacid is used to treat and prevent
stomach and intestinal ulcers, erosive esophagitis, and other conditions.

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the fact that the Plaintiff was noted to have been drinking alcohol on the morning of his EGD
test. (T. 229).
The Plaintiff alleged that he became disabled on February 13, 2008 because of back pain,
numbness from his hips down, COPD and asthma. (T. 156).
The Plaintiff did not see Dr. Asbury again until June 10, 2008 and then only because he
was out of medication. Dr. Asbury diagnosed the Plaintiff with depression and insomnia. He
prescribed Elavil, Atarax, and Lorcet Plus and told him to quit smoking. (T. 215).
On September 5, 2008, approximately one week after the Plaintiff had filed his
application for DIB (T. 132) the Plaintiff saw Dr. Asbury complaining of Tremor, shakes, and
numbness in the hips. Dr. Asbury noted that the Plaintiff’s cranial nerves were intact but that he
had an “intentional tremor” in both hand which was markedly improved with rest. He assessed
the Plaintiff with an Intentional tremor, ethanol abuse and paresthesias of both legs. He
prescribed Neurontin6 300 mg p.o. (orally) nightly for a week and then b.i.d. (two times per day),
ordered a BMP (Bacic Metabolic Panel) and CBC (Complete blood count) and he completed
some forms for Medicare (T. 214).
The effective dose of Neurontin is 900 to 1800 mg/day and given in divided doses (three
times a day) using 300 or 400 mg capsules, or 600 or 800 mg tablets. The starting dose is 300 mg
three times a day. If necessary, the dose may be increased using 300 or 400 mg capsules, or 600
or 800 mg tablets three times a day up to 1800 mg/day. Dosages up to 2400 mg/day have been
well tolerated in long-term clinical studies. Doses of 3600 mg/day have also been administered to
a small number of patients for a relatively short duration, and have been well tolerated. The
6

Neurontin (gabapentin) is an anti-epileptic medication, also called an anticonvulsant.

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maximum time between doses in the TID schedule should not exceed 12 hours. See
www.drugs.com.
While the Plaintiff asserted to Dr. Asbury that he had these tremors, shakes, and
numbness in his hips for “a number of months to years” there is nothing in the medical records to
validate the symptom of numbness in his hips or that the Plaintiff had ever complained of this
conditions prior to September 5, 2008 and had only complained of the “tremors” once prior in
February 2008. Nor does the record indicate that the Plaintiff sought any treatment for the
alleged symptoms after September 5, 2008. In general, the failure to obtain follow-up treatment
indicates that a person's condition may not be disabling or may not be as serious as alleged. See
Shannon v. Chater, 54 F.3d 484, 487 (8th Cir.1995). Dr. Asbury also indicated on September 5,
2008 that the Plaintiff was “markedly improved with rest” (T. 214) and he expected a
“fundamental or marked change for the better in the future” (T. 210). The ALJ was correct to
discount the treating physicians’s statement.
2. Agency Evaluation
The Plaintiff was sent for a general physical examination which was conducted by Marie
Pham, APN, Nurse Practitioner on November 12, 2008 who reported that there no evidence of
muscle atrophy at any level; there were no sensory abnormalities; and Plaintiff enjoyed a steady
gait (Tr. 271). Neurologically, the reflexes in Plaintiff’s arms bilaterally were diminished, and
there were symptoms of tremor in his right arm, which was relieved when Plaintiff made
“purposeful movement” (Tr. 271). Plaintiff’s limb function was normal, with a 100 percent
normal grip strength, bilaterally. Plaintiff’s range of motion in all extremities, and in the cervical
and lumbar spine (Tr. 272). Nurse Pham also referred the Plaintiff to Dr. William Hocott for a
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Rogentgenological Report (xray) which was performed on November 11, 2008. Dr. Hocott found
a probable old superior endplate compression of L5. (T. 269). Nurse Pham opined that based on
physical exam today, this patient has no physical limitations, she offered that “he needs to quit
drinking” (Tr. 273). Nurse Pham’s findings were approved by Dr. Frisbie but there is no evidence
that Dr. Frisbie ever saw the Plaintiff.
Other sources include nurse practitioners, physician assistants, licensed clinical social
workers, naturopaths, chiropractors, audiologists, and therapists. Therapists and nurse
practitioners are specifically listed as “other” medical sources who may present evidence of the
severity of the claimant's impairment and the effect of the impairment on the claimant's ability to
work. Id. §§ 404.1513(d)(1), 416.913(d)(1). Lacroix v. Barnhart 465 F.3d 881, 887 (C.A.8
(Iowa),2006).
In this case the nurse practitioner administered a series of quantitative test and recorded
the outcome of each test. Her results, when compared to Dr. Ausbury’s, are more persuasive.
In addition the ALJ secured a Physical RFC Assessment provided by Dr. Jerry Thomas on
November 21, 2008 who found the Plaintiff could lift 50 pounds occasionally, 25 pounds
frequently, and that he could stand and/or walk and sit for 6 hours in an 8 hour work day. He
found no limitations on the Plaintiff’s ability to push and/or pull (T. 275) and no manipulative
limitations (T. 277). Dr. Thomas’ findings were reviewed and affirmed by Dr. David Hicks on
February 5, 2009. (T. 297).
B. Subjective Complaints
The ALJ found that the claimant’s medically determinable impairments could reasonably
be expected to cause the allege symptoms; however, the claimant’s statements concerning the
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intensity, persistence and limiting effect of these symptoms are not credible to the extent they are
inconsistent with the RFC. (T. 16). The Plaintiff does not contest the ALJ’s decision to discount
the Plaintiff’s subjective complaints.
C. Step Four
The Plaintiff contends that the ALJ erred in the determination that he could return to his
past relevant work as a meter reader.
Step four requires the ALJ to consider whether the claimant retains the RFC to perform
her past relevant work. The claimant bears the burden of demonstrating an inability to return to
past relevant work. Pate-Fires v. Astrue 564 F.3d 935, 942 (C.A.8 (Ark.),2009) citing Steed v.
Astrue, 524 F.3d 872, 875 n. 3 (8th Cir.2008). At this step the ALJ must consider whether a
claimant's impairments keep him from doing past relevant work. See Jones v. Chater, 86 F.3d
823, 826 (8th Cir.1996) (citing 20 C.F.R. § 404.1520). The ALJ will find that a claimant is not
disabled if he retains the RFC to perform:
1. The actual functional demands and job duties of a particular past relevant job; or
2. The functional demands and job duties of the occupation as generally required by
employers throughout the national economy. Wagner v. Astrue 499 F.3d 842, 853 (C.A.8
(Iowa),2007).
The regulations provide that the ALJ may elicit testimony from a vocational expert in
evaluating a claimant's capacity to perform past relevant work. 20 C.F.R. § 404.1560(b)(2) (“We
may use the services of vocational experts or vocational specialists ... to obtain evidence we need
to help us determine whether you can do your past relevant work, given your residual functional
capacity.”). This court has implicitly approved of an ALJ considering vocational expert
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testimony at step four of the evaluation process. See Haynes v. Shalala, 26 F.3d 812, 815 (8th
Cir.1994).
In this case the ALJ did utilize a VE who testified that, based upon the RFC, the Plaintiff
could perform the function of his past job as meter reader (T. 65) which he had performed from
January 2002 through February 2008 (T. 163). The court finds no error in the ALJ’s
determination that the Plaintiff could return to his past relevant work as a meter reader.
IV.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.

Dated this July 30, 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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