Rocha v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 18, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOZE M. ROCHA

v.

PLAINTIFF

CASE NO.

12-2172

CAROLYN W. COLVIN1, 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 16, 2010, alleging an
onset date of October 1, 2008, due to plaintiff’s hip pain, back pain, knee pain, shoulder pain,
hand inflamation, and depression. Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff then requested an administrative hearing, which was held on May 3,
2011. Plaintiff was present and represented by counsel.

1

Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.

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At the time of the administrative hearing, plaintiff was 41 years of age and possessed a 12
grade education. The Plaintiff had past relevant work (“PRW”) experience as a bilingual
receptionist, clerk, general production worker, meat checker, pc cutter, and trimmer (T. 165).
On May 17, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s arthritis, obesity, depression, bipolar disorder, generalized anxiety disorder,
panic disorder with agoraphobia, and intermittent explosive disorder did not meet or equal any
Appendix 1 listing. T. 11. The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to light work with additional restrictions. T. 13. With the assistance of a
vocational expert, the ALJ then determined Plaintiff could perform the requirements of
representative occupation such as parking lot attendant, bench assembler, and school bus
monitor. T. 18.
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
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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).
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. 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. Record Development
The Plaintiff first contends that the ALJ failed to develop the record (ECF No. 11, p. 9)
by not obtaining the medical records from Dr. Martinez at Tropical Texas Center and Dr.
Summia Malhi of Brownsville Community Health. (Id., p. 10).
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
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935, 938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination
of disability may be made). This duty exist “even if ... the claimant is represented by counsel.”
Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d 428,
431 (8th Cir.1983)). The ALJ is not required to act as Plaintiff’s counsel. See Clark v.
Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute
counsel, but only to develop a reasonably complete record); see also Shannon v. Chater, 54 F.3d
484, 488 (8th Cir. 1995) (“reversal due to failure to develop the record is only warranted where
such failure is unfair or prejudicial”).
It appears that the Defendant sent a request for the Plaintiff’s records to the Brownsville
Community Health Clinic on August 16, 2010. (T. 271). The Commissioner did not request just
one record but all records of the Plaintiff. The Clinic responded with a Progress Note (T. 273)
and an x-ray of the left hip from her visit of April 1, 2010. (T. 272). It is well established
that the burden of proof to demonstrate the existence of a disability lies with the claimant seeking
benefits. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991) (burden on plaintiff to prove
disability; thus, plaintiff has responsibility for presenting strongest case possible). If the
Brownsville Health Clinic’s response was incomplete it was the Plaintiff’s responsibility to
supplement the record.
Shortly after filing for benefits the Commissioner ordered a Mental Evaluation which was
performed by Dr. G. Alan Trimble, M.D. in April 2010. (T. 277). Dr. Trimble diagnosed the
Plaintiff with Bipolar I Disorder, Panic Disorder with Agoraphobia, Generalized Anxiety
Disorder (T. 281), Intermittent Explosive Disorder, and Substance Abuse (T. 282). He felt she

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had a GAF of 50.2 (T. 283). The Plaintiff acknowledged to Dr. Trimble that she “had never
received any treatment” (T. 277) so there were no other mental records for the ALJ to obtain. Dr.
Susan Thompson, M.D. preformed a Psychiatric Review Technique in June 2010 (T. 296) and
provided a Mental RFC (T. 292) finding the Plaintiff was only Moderately Limited in some areas
(T. 292-293).
The Commissioner also obtained a physical examination performed by Dr. Ricardo A.
Adames, M.D. on May 10, 2010. Dr. Kelvin Samaratunga, M.D. then provided a Physical RFC
assessment finding that the Plaintiff could lift 50 pounds occasionally, 25 pounds frequently and
sit, stand and/or walk for about 6 hours in an 8-hour work day. (T. 311). He found no postural
limitations (T. 312) or manipulative limitations (T. 313).
There is no bright line rule indicating when the Commissioner has or has not adequately
developed the record; rather, such an assessment is made on a case-by-case basis. Battles v.
Shalala, 36 F.3d 43 at 45 (C.A.8 (Ark.), 1994). In this case the court believes that the ALJ
properly developed the record.
B. RFC Assessment
The ALJ determined that the Plaintiff had the Residual Functional Capacity to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant
must work in a job where she is allowed to sit or stand alternatively at will, but she would not
have to leave the workstation. In addition, she can occasionally climb ramps or stairs, but she can

2

A GAF of 41 to 50 indicates “Serious symptoms ... OR any serious impairment in social, occupational, or
school functioning (e .g., few friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) 34 (4th ed.2000). A GAF score of 51 to 60 indicates “moderate symptoms ... OR moderate difficulty
in social, occupational, or school functioning.” DSM-IV-TR at 34.

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never climb ladders/ropes/scaffolds. Also, the claimant's work is limited to simple, routine, and
repetitive tasks in a work environment free of fast-paced production requirements involving only
simple work-related decisions with few, if any, work place changes and she must have only
occasional interaction with supervisors.
1. Credibility
In determining a claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’
” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2002)). The ALJ must consider several factors when evaluating a claimant's
subjective complaints of pain, including claimant's prior work record, observations by third
parties, and observations of treating and examining physicians relating to 1) the claimant's daily
activities; 2) the duration, frequency, and intensity of pain; 3) precipitating and aggravating
factors; 4) dosage, effectiveness and side effects of medication; and 5) functional restrictions.
Casey, 503 F.3d at 695 (8th Cir.2007) (citing Polaski v. Heckler, 729 F.2d 1320, 1322 (8th
Cir.1984). The ALJ may discount subjective complaints when they are inconsistent with the
evidence as a whole. Id. (citing Polaski, 739 F.2d at 1322). “The ALJ is not required to discuss
each Polaski factor as long as the analytical framework is recognized and considered.” Tucker v.
Barnhart, 363 F.3d 781, 783 (8th Cir.2004).
a. Work Record
The Plaintiff’s work record over the past fifteen years is mixed having gained SGA in
only 1995, 1999, 2001, 2002, 2004, 2005, 2006, 2007, 2008. (T. 133). Even that SGA, however,
was very moderate averaging in the low teens except for 2006 when the Plaintiff earned $21,
928.18. (Id.). It appears that the Plaintiff had four jobs in 2008 and she testified that she was
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terminated from her job in October because “I deal with a certain amount of pain every day, and
there are day that it’s more and it makes me a not so friendly person, and my coworkers felt that
they could not–they did not feel comfortable working with me because of the way I was.” (T. 29).
An ALJ may consider a claimant’s work record in his credibility analysis. See Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (ALJ may consider that a claimants sporadic work
record reflecting relatively low earnings and multiple years with no reported earnings that
showed a lack of motivation to return to work)
b. Duration, Frequency and Intensity of Pain
There does not appear to be any medical records produced showing that the Plaintiff
sought any treatment for any of the alleged impairments prior to the alleged onset date of October
1, 2008.
On July 9, 2009 the Plaintiff visited the Baxter Regional Medical Center complaining of
left leg pain. (T. 236). The diagnosis was Knee pain-swelling; knee sprain. (T. 238). There was
no loss of motor function (T. 239) and the Venous Doppler ultrasound of the left lower extremity
was normal. (T. 250). She was prescribed hydrocodone and Flexeril and Advil (Tr. 240) and
given Educational Material about Sprains. (T. 245). On July 24, 2009 the Plaintiff was seen again
at the Baxter Regional Medical Center for treatment of a Boil on her left hip. (T. 254). No
medication was prescribed and only Educational Material was given to the Plaintiff. (T. 257).
This constituted the entire medical record of the Plaintiff prior to filing her claim for disability on
February 16, 2010.
It is true that, “[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 (8th Cir.1995). Id.; See
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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).
It is also true that Plaintiff's attempts to excuse her failure to pursue more aggressive
treatment cannot be wholly excused due to her 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)
c. Medication
In her Disability Report completed at the time of her application for benefits in February
2010 the Plaintiff stated that she was not taking any Medicines. (T. 167). On May 3, 2011, when
the Plaintiff testified before the ALJ she stated that she was not on any medication and contended
that she could not obtain medication because of her financial condition. (T. 31). The record
shows that the Plaintiff smokes ½ pack of cigarettes per day and has for many years. (T. 289).
See 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 Plaintiff also testified at the hearing that
she “used to smoke marijuana” and when asked by the ALJ when she last consumed marijuana
she admitted that she last used marijuana just three months prior to the hearing. (T. 29).
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A claimant's allegations of disabling pain may be discredited under the third Polaski
factor by evidence that the claimant has received minimum medical treatment and/or has taken
medications for pain only on an occasional basis. See Cline v. Sullivan 939 F.2d 560, 568 (C.A.8
(Iowa),1991); citing Williams v. Bowen, 790 F.2d 713 (8th Cir.1986).
Assessing and resolving credibility issues is a matter that is properly within the purview
of the ALJ. Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will not substitute its
own credibility opinion for that of the ALJ). The court believes that the ALJ properly discounted
the Plaintiff assertions of disabling pain.
2. RFC Determination
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).
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Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
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).
The Plaintiff was seen by Dr. Trimble, M.D. for a mental evaluation in April 2010 and he
diagnosed the Plaintiff with Bipolar I Disorder, Panic Disorder with Agoraphobia, Generalized
Anxiety Disorder, Intermittent Explosive Disorder, and Substance Abuse. (T. 281-282). Dr.
Susan Thompson, M.D. provided a Psyciatric Review Technique on June 21, 2010 (T. 296) and
found the Plaintiff to have Mild Restrictions of Daily Living, Moderate Restrictions of Social
Functioning and Maintaining Concentration, Persistence, or Pace, and No Episodes of
Decompensation. (T. 306). Dr. Thompson provided a Mental RFC assessment finding that the
Plaintiff was only Moderately Limited in some areas (T. 292-293) and felt that the Plaintiff could
“ UNDERSTAND, REMEMBER AND CARRY OUT DETAILED BUT NOT COMPLEX
INSTRUCTIONS, MAKE DECISIONS, ATTEND AND CONCENTRATE FOR EXTENDED
PERIODS, ACCEPT INSTRUCTIONS AND RESPOND APPROPRIATELY TO CHANGES IN
ROUTINE WORK SETTINGS.” T. 294. Dr. Thompson’s findings were reviewed and affirmed
by Dr. Thomas Geary on September 17, 2010. (T. 319)
The Plaintiff was seen by Dr. Ricardo Adames on May 10, 2010 for a physical
examination (T. 289) and he noted that all joints had a full range of motion, that the dorsiflexion
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of the lumbar spine was intact, pulses were present with good intensity in the lower and upper
extremities (T. 290). A Physical RFC was performed by Dr. Kelvin Samaratunga, M.D. on June
21, 2010 finding that the Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, and
stand and/or walk and sit for 6 hours in an 8-hour workday. (T. 311). Dr. Samaratunga’s findings
were reviewed and affirmed by Dr. James Wright, M.D. on September 23, 2010. (T. 320).
As the court has noted previously there were no contrary treating physician assessments.
See Page v. Astrue, 484 F.3d at 1043 (the medical evidence, state agency physician opinions, and
claimant's own testimony were sufficient to determine RFC); Stormo v. Barnhart, 377 F.3d 801,
807-08 (8th Cir. 2004) (medical evidence, state agency physicians' assessments, and claimant's
reported activities of daily living supported RFC finding); Masterson v. Barnhart, 363 F.3d 731,
738 (8th Cir. 2004) (ALJ's RFC assessment properly relied upon assessments of consultative
physicians and a medical expert, which did not conflict with the treating physician's records).
Notwithstanding the above opinions the ALJ limited the Plaintiff to Light Work with
additional restriction taking into account her hip deformity (T. 272) and her mental condition.
It is the ALJ's job to reach a decision as to the claimant's legal disability by evaluating the
objective medical evidence before him. Cox v. Barnhart 345 F.3d 606, 608 (C.A.8 (Ark.),2003).
The court believes that the ALJ properly evaluated the evidence before him and determined a
proper RFC for the Plaintiff.
C. Vocational Expert Opinion:
The ALJ moved to step 5 and received testimony from a vocational expert concerning the
number of jobs that could be performed by an individual with the RFC assessment found by the
ALJ to apply to the Plaintiff. (T. 41-45).
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Testimony from a vocational expert ("VE") based on a properly-phrased hypothetical
question constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir.
1996); cf. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does
not encompass all relevant impairments, VE's testimony does not constitute substantial evidence
to support the ALJ's decision). The ALJ's hypothetical question needs to "include only those
impairments that the ALJ finds are substantially supported by the record as a whole." Id. (citing
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228,
1230 (8th Cir.1994).
The court finds that the hypothetical question posed by the ALJ to the VE was proper.
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 18, 2013.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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