Cook v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 12, 2013. (rw)
Cook v. Social Security Administration Commissioner
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CHERYL L. COOK
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Cheryl L. Cook, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under the provisions of Titles II and 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. § 406(g).
Plaintiff filed her applications for DIB and SSI on April 23, 2010, due to scoliosis, back
pain, leg pain, pinched nerves, and Plummer’s Disease.2 (Tr. 106-108, 114-117, 153). An
administrative hearing was held on December 8, 2010, at which Plaintiff appeared with counsel
and testified. (Tr. 22-48).
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Plummer’s disease - eponym sometimes applied to hyperthyroidism resulting from a nodular toxic goiter, usually
not accompanied by exophthalmos. Stedman’s Medical Dictionary 562 (28th ed. 2006).
By written decision dated January 24, 2011, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - back disorder (scoliosis and
degenerative disc disease). (Tr. 17). However, after reviewing all of the evidence presented, the
ALJ 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. 17). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except as follows: The claimant is able to frequently lift and/or carry ten
pounds, and occasionally twenty pounds, push and/or pull within the
limits for lifting and carrying, sit for a total of about six hours in an eight
hour work day, and stand and/or walk for a total of about six hours in an
eight hour work day. The claimant cannot climb ladders, scaffolds, or
ropes. The claimant can occasionally stoop, bend, kneel, crouch, or crawl.
(Tr. 18). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was able
to perform her past relevant work as a Case Worker and Security Worker. (Tr. 20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on April 25, 2012. (Tr. 1-3). Subsequently, Plaintiff filed this action (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 3). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 7, 8).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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 her 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 her residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises one issue on appeal - that the ALJ erred in rejecting Plaintiff’s subjective
complaints of disabling pain and failing to adequately consider the side effects of Plaintiff’s
medication. (Doc. 7).
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.
In this case, the ALJ found that Plaintiff’s medically determinable impairment could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence and limiting effects of the symptoms were not credible to the extent
they were inconsistent with the RFC assessment. (Tr. 18). In making this finding, the ALJ
considered the fact that x-rays of Plaintiff’s lumbar spine showed moderate levoscoliosis of the
lumbar spine with normal vertebral body heights, no destructive osseous changes, but mild L4-5
and L5-S1 interspace narrowing. (Tr. 19). The ALJ also considered the opinions of Plaintiff’s
treating physicians, Dr. Ronald D. Schlaback and Dr. Michael G. Kemp, of Alma Family
Medical Clinic. (Tr. 19). Plaintiff was referred to River Valley Orthopedics, where, on
December 7, 2009, Dr. Thomas E. Cheyne interpreted Plaintiff’s x-rays to show mild to
moderate degenerative disk changes from L4 to SI as well as at the L1-2 level. Dr. Cheyne
recommended that Plaintiff take Mobic and take hot showers twice daily, to remain active but
protective of her back, and noted that Plaintiff smoked 15 to 20 cigarettes per day. (Tr. 221-222).
The ALJ also considered the December 28, 2009 MRI scan, which revealed disc
desiccation most prominent in the lumbar spine at L1-2 and L4-5 levels - no significant central
canal stenosis evidence, mild disc bulging at these levels, and an additional note was made of
there being a small right foraminal disc herniation suspected at L3-4, doubtful neurologic
significance. (Tr. 217-218). Plaintiff was referred for epidural steroid injection, which,
according to Plaintiff, was not successful. (Tr. 227).
Plaintiff continued to see Dr. Kemp for her pain, and tried taking Lorcet for pain. (Tr.
227). Dr. Kemp noted that she was to take no more than 3 ½ a day. Plaintiff had trouble with
nausea and vomiting, related to taking the medicine, and reported that when she became ill, she
took more medicine, which ran her out of her medicine early. (Tr. 227). The ALJ noted that
when Plaintiff saw Dr. Kemp on June 24, 2010, Plaintiff had been taking more Lorcet that what
was prescribed because her back was giving her so much trouble. (Tr. 290). On August 5, 2010,
Plaintiff told Dr. Kemp she had driven to Memphis to attend the funeral of her brother, and had
increased back pain. (Tr. 289). Dr. Kemp cautioned Plaintiff that she did not need to take any
more medicine than was prescribed for her and should make them last. (Tr. 289).
The ALJ recognized that Plaintiff suffered from some degree of intermittent back pain
as a result of mild to moderate degenerative disc disease associated with scoliosis and that the
pain is exacerbated by increased activity. (Tr. 20). However, the ALJ also noted that the inability
to work without some pain or discomfort is not a sufficient reason to find a claimant disabled.
(Tr. 20). He reported that the factor of subjective pain and discomfort, which in and of itself may
prove to be disabling, has been duly recognized and considered, but that the mere inability to
work without some degree of pain or discomfort did not necessarily constitute a “disability” for
Social Security. (Tr. 20). The ALJ found that his RFC assessment took into consideration all the
pertinent evidence in the record as a whole. (Tr. 20). The Court agrees.
As indicated by the ALJ and by the record as a whole, Plaintiff engages in excessive use
of pain medications. The physicians have recommended only conservative treatment, and there
is no indication that Plaintiff’s back conditions have deteriorated to the extent that she would not
be able to perform work activities. It is noteworthy that on May 11, 2009, Dr. Schlaback
recommended that Plaintiff restart Piroxicam once daily, and that Plaintiff had stopped it,
perceiving that it wasn’t giving much help. (Tr. 242). However, Dr.Schlaback reported that if
she took it, he would anticipate “less episodes of flare-ups.” (Tr. 242). He also suggested a trial
of Robaxin 500 mg every six hours p.r.n. for muscle spasm, and encouraged Plaintiff to try to
do a daily walking. (Tr. 242). Such instructions are inconsistent with allegations of disabling
Based upon the foregoing, as well as for those reasons given in Defendant’s well-stated
brief, the Court finds that there is substantial evidence to support the ALJ’s credibility findings.
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 12th day of August, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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