Brewton v. Social Security Administration Commissioner
Filing
12
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on September 14, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DAMON P. BREWTON
PLAINTIFF
v.
CASE NO.
11-2156
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 February 12, 2008 (T. 136) and
February 27, 2008 (T. 143) respectively, alleging an onset date of June 2, 2000 (T. 159), due to
plaintiff’s visual and mental impairments and leg pain (T. 163). Plaintiff’s applications were
denied initially and on reconsideration. Plaintiff then requested an administrative hearing, which
was held on May 12, 2009. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 42 years of age and possessed a
GED. The Plaintiff had past relevant work (“PRW”) experience as a small parts assembler (T.
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15).
On February 17, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s limited visual acuity, dysthymic disorder, panic disorder, and borderline
intellectual functioning did not meet or equal any Appendix 1 listing. T. 11. The ALJ found that
plaintiff maintained the residual functional capacity (“RFC”) to perform a full range of work at
all exertional levels but he had nonexertional limitations that precluded work requiring fine
visual acuity or transactional interaction with others. T. 12. With the assistance of a vocational
expert, the ALJ then determined Plaintiff could perform the representative occupations such as
housekeeping and meat processing. T. 16.
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
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
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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. 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
A. Relevant Time Period
The Plaintiff not only has the burden of proof to establish his disability, but, to be entitled
to benefits, Plaintiff must also prove that he was disabled before his insurance expired. See
Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir.1998). Evidence from outside the insured period can
be used in “helping to elucidate a medical condition during the time for which benefits might be
rewarded.” Id. at 877. Cox v. Barnhart 471 F.3d 902, 907 (C.A.8 (Ark.),2006) In this case the
ALJ noted that the Plaintiff had acquired sufficient coverage to remain insured through
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December 31, 2006 and that he had to establish his disability prior to that date. (T. 8).
In this case there is only one medical record during the relevant time period and that
record dealt with a claim of numbness in the Plaintiff’s left hand on December 9, 2006 when he
presented to the Good Samaritan Clinic (T. 208). He was diagnosed with left ulnar neuropathy
but the clinic noted in May 2007 that the “ulnar neuropathy ceased”. (T. 207). No subsequent
medical record contains any reference to ulnar neuropathy. The ALJ was left with the unenviable
task of trying to determine if the Plaintiff had a disability prior to the expiration of his insured
status notwithstanding the lack of medical evidence.
On February 17, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s limited visual acuity, dysthymic disorder1, panic disorder, and borderline
intellectual functioning did not meet or equal any Appendix 1 listing. T. 11. The ALJ found that
plaintiff maintained the residual functional capacity (“RFC”) to perform a full range of work at
all exertional levels but he had nonexertional limitations that precluded work requiring fine
visual acuity or transactional interaction with others. T. 12. With the assistance of a vocational
expert, the ALJ then determined Plaintiff could perform the representative occupations such as
housekeeping and meat processing. T. 16.
The Plaintiff contends that the ALJ A) failed to properly consider his impairments in
combination, B) erred in his analysis and credibility determination of his subjective complaints,
and C) erred in his RFC determination. (ECF No. 10, p. 2).
B. Impairments in Combination
1
Dysthymia is a mild, but chronic, form of depression. See www.mayoclinic.com
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Social Security regulations provide that the Commissioner is to consider the combined
effect of all the claimant’s impairments without regard to whether any such impairment, if
considered separately, would be of such sufficient severity to be the basis of disability under the
law. 20 C.F.R. §§ 404.1523, 416.923; 42 U.S.C. § 423(d)(2)(B). The ALJ must not fragmentize
them in evaluating their effects. Delrosa v. Sullivan, 922 F.2d 480, 484 (8th Cir. 1991) (citing
Johnson v. Secretary of Health & Human Servs., 872 F.2d 810, 812 (8th Cir. 1989)).
The ALJ recognized that disability is “the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment or combination
of impairments . . .” (Tr. 8)(emphasis added). In setting forth the applicable law, the ALJ
repeatedly recognized that her analysis of Plaintiff’s claims must include consideration of
Plaintiff’s impairments or combination of impairments (Tr. 16). The ALJ noted at step two that
she must consider whether Plaintiff “has a medically determinable impairment that is severe or a
combination of impairments that is severe” (Tr. 16)(emphasis added). The ALJ noted at step
three that she “must determine whether the claimant’s impairment or combination of
impairments meets or medically equals” a listed impairment (Tr. 16)(emphasis added). The ALJ
noted specifically that in determining Plaintiff’s RFC she “must consider all of the claimant’s
impairments, including impairments that are not severe” (Tr. 17).
The Plaintiff did testify that his back started hurting about five years prior to the hearing,
or 2004 (T. 41). This conceivable shows the impairment to exist prior to the expiration of
benefits. The Plaintiff’s medical records show that in June 2009 his back pain “started 5 years
back, worsening for past two years”. (T. 311). The Plaintiff first contends that the ALJ
disregarded the Plaintiff's testimony about his low back pain however this is not correct. The
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ALJ specifically noted that the Plaintiff "testified that his back had been recently x-rayed, but
also admitted that those x-rays showed not problems with his back". (T. 11). Even in 2009 only
heat packs and exercise were prescribed by the doctor. There is no proof that any disabling back
pain existed prior to 2007.
The Plaintiff did not allege his ulnar neuropathy, GERD symptoms, or OCD as disabling
impairments in his disability application (Tr. 163). The fact that the plaintiff did not allege an
impairment as a basis for his disability in her application for disability benefits is significant,
even if the evidence of the impairment was later developed. See Smith v. Shalala, 987 F.2d 1371,
1375 (8th Cir.1993); Dunahoo v. Apfel, 241, F. 3d 1033, 1039 (8th Cir. 2001). In addition the last
medical record concerning the Plaintiffs’s ulnar neuropathy shows it resolved in May 2007. (T.
207). As previously noted there is no evidence that any of these conditions predated the
expiration of the Plaintiff’s insured status. The court does not feel that the ALJ committed any
error in her consideration of the Plaintiff’s complaints.
C. Credibility Determination
The Plaintiff testified on May 12, 2009 that he had not looked for work because his back
had “been really sore lately” and that his back started hurting him five years ago but he
acknowledged that recent x-rays were negative (T. 41). His mother testified that he was “100
percent blind in one eye” (T. 47) and that he had “stomach problems” (T. 49), “low back
problems” (T. 50) and depression (T. 54). In the Disability Report filed February 29, 2008 the
Plaintiff claimed visual impairments, depression, anxiety, bipolar and leg pain. (T. 163). It does
not appear that the Plaintiff completed a Function Report or a Pain Assessments because the
record does not contain these forms.
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The ALJ found that the Plaintiff statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible to the extent they were inconsistent with the
RFC assessment. (T. 13). The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff's complaints. Masterson v.
Barnhart, 363 F.3d 731, 738 (8th Cir.2004). However, the ALJ need not explicitly discuss each
Polaski factor. Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.2004). The ALJ only need
acknowledge and consider those factors before discounting a claimant's subjective complaints.
Id.
The ALJ first notes a lack of ongoing medical care. The Plaintiff contends that his
disability began June 2, 2000 (T. 159) but his first medical record is December 9, 2006 for
numbness in his left hand (T. 208) which was resolved by May 2007 (T. 207). His first diagnosis
of depression was May 2007 (T. 207) and his first complaint for low back pain was April 2009
(T. 313). For the low back pain the doctor prescribed ibuprofen 400 mg twice daily (T. 313). Xrays were normal (T. 323) and when the Plaintiff saw the doctor again in May 2009 for low back
pain the doctor prescribed heat treatment and exercise (T. 312). In June the doctor again
prescribed ibuprofen and exercise (T. 311).
It is inconceivable to the court that had the Plaintiff’s back pain been as severe as the
Plaintiff alleges that he would not have sought more substantive treatment to relieve the pain.
See Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987) (upholding ALJ's consideration of
claimant's failure to seek medical attention where claimant's measures to relieve pain were not
indicative of severe, disabling pain). “[W]hile not dispositive, a failure to seek treatment may
indicate the relative seriousness of a medical problem .” Shannon v. Chater, 54 F.3d 484, 486
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(8th Cir.1995).
The ALJ also noted that the Plaintiff received no counseling for his depression after the
alleged onset date. (T. 14). See Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (holding that
lack of formal treatment by a psychiatrist, psychologist, or other mental health professional is a
significant consideration when evaluating Plaintiff’s allegations of disability due to a mental
impairment). The ALJ also specifically noted that the Plaintiff had previously filed for disability
based on mental impairments, was examined in October 2007, and denied in November 2007,
and sought no treatment for his mental condition after the October examination by Dr. Kralik. (T.
13) See Banks v. Massanari, 258 F.3d 820, 825-26 (8th Cir.2001) (ALJ properly discounted
claimant's complaints of disabling depression as inconsistent with daily activities and failure to
seek additional psychiatric treatment).
To the extent that Plaintiff's attempts to excuse his failure to pursue more aggressive
treatment cannot be wholly excused due to his claims of financial hardship. See Murphy v.
Sullivan, 953 F.2d 383, 386-87 (8th Cir.1992) (rejecting claim of financial hardship where there
was no evidence that claimant attempted to obtain low cost medical treatment or that claimant
had been denied care because of her poverty); Hutsell v. Sullivan, 892 F.2d 747, 750 n. 2 (8th
Cir.1989) (noting that “lack of means to pay for medical services does not ipso facto preclude the
Secretary from considering the failure to seek medical attention in credibility determinations.”)
(internal quotations omitted). Tate v. Apfel 167 F.3d 1191, 1197 (C.A.8 (Ark.),1999). The
Plaintiff in this case clearly never sought any treatment and was never turned down because of
financial hardship.
The court also notes that the Plaintiff did not quit smoking until July 2009 (T. 310). See
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Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (noting that despite the claimant’s claim that
he could not afford medication, the fact that he chose to smoke rather than pay for medications
was inconsistent with disabling pain).
The ALJ also noted that the Plaintiff went without any medication for almost 7 years after
his alleged onset and when he was first diagnosed with depression in May 2007 the doctor
prescribed Lexapro2 10 mg as needed. (T. 207). In August 2007 the doctor reduced the Plaintiff’s
dosage to 5 mg.
So long as the ALJ “explicitly discredits a claimant's testimony and gives a good reason
for doing so,” the court should defer to the ALJ's credibility assessment in assessing complaints
of disabling pain. Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir.2010) (quotation and citation
omitted). The court does not find that the ALJ committed any error in discounting the
contentions of the Plaintiff concerning his impairments.
D. Hypothetical question
Of particular concern to the undersigned, however, is the hypothetical question posed to
the Vocational Expert. The ALJ found that plaintiff maintained the residual functional capacity
to perform a full range of work at all exertional levels but he had nonexertional limitations that
precluded work requiring fine visual acuity or transactional interaction with others. T. 12. The
ALJ then posed a hypothetical question to the VE which asked if there were any jobs that existed
in the national economy that the Plaintiff could perform assuming the RFC as stated. (T. 199).
There was no provision in the RFC for Borderline Intellectual Functioning.
2
Lexapro (escitalopram) is an antidepressant in a group of drugs called selective serotonin
reuptake inhibitors (SSRIs). See Www.drugs.com
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The ALJ found that the Plaintiff had a severe impairment of Borderline Intellectual
Functioning (T. 10). Borderline intellectual functioning is a condition defined as an IQ score
within the 71-84 range. See American Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, 39-40, 684 (4th ed.1994). A diagnosis of borderline intellectual functioning
should be considered severe when the diagnosis is supported by sufficient medical evidence. See
Nicola v. Astrue, 480 F.3d 885, 887 (C.A.8 (Iowa),2007) citing Hunt v. Massanari, 250 F.3d 622,
625-26 (8th Cir.2001).
The Government argues that Dr. LaGrand ruled out BIF (ECF No. 11, p. 13) however the
court the court does not agree and notes that Dr. LaGrand estimated the Plaintiff’s IQ to be
between 70-79 and that he did have BIF (T. 260). Dr. LaGrand notes on Axis II reflect “R/O
Borderline Intellectual Functioning” (Id.). Contrary to the Government’s argument the court
believes this diagnosis means that BIF possibly exist and that further testing is necessary to rule
out that diagnosis. Dr. Jerry Henderson noted “significant subaverage general intelligence and
“BIF versus low average”. (T. 271). Dr. Patricia Walz, after the administration of intelligence
testing, found the Plaintiff to have “Probable Borderline Intellectual Functioning”. (T. 298).
Regardless the ALJ found that BIF was a severe impairment and failed to consider it in the
hypothetical question to the VE
The United States Court of Appeals for the Eighth Circuit has held “that borderline
intellectual functioning, if supported by the record as it is here, is a significant nonexertional
impairment that must be considered by a vocational expert.” Lucy v. Chater, 113 F.3d 905, 908
(8th Cir.1997); Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997). We have explained:
“While borderline intellectual functioning may not rise to the level of a disability by itself, a
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claimant is nevertheless entitled to have a vocational expert consider this condition along with
[her] other impairments to determine how it impacts upon the claimant's residual functional
capacity.” Id. at 909 (citing Pickney, 96 F.3d at 297). We also have noted it is of no consequence
whether the claimant's borderline intellectual functioning pre-dated her application; the
vocational expert still must consider it along with the claimant's other impairments. See Pickney,
96 F.3d at 297 n. 3; Grissom v. Barnhart 416 F.3d 834, 837 (C.A.8 (Ark.),2005)
Therefore, the case should be remanded to allow the ALJ to call a vocational expert to
testify as to specific jobs plaintiff can perform, given his intellectual limitations.
IV. Conclusion
Accordingly, the court finds that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration.
Dated this September 14, 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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