Roam v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 15, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHERRY A. ROAM

v.

PLAINTIFF

CASE NO.

12-2256

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 an applications for DIB and SSI on September 22, 2009, alleging an
onset date of April 23, 2009, due to plaintiff’s stomach, weak legs, colon, and back pain. (T.
154). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then
requested an administrative hearing, which was held on January 27, 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 38 years of age and possessed a
High School Education. The Plaintiff had past relevant work (“PRW”) experience as a cashier
and temp laborer (T. 154).
On April 20, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s back disorder, gastrointestinal disorder, and obesity did not meet or equal any
Appendix 1 listing. T. 13 . The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to light work with additional restrictions. T. 15. With the assistance of a
vocational expert, the ALJ then determined Plaintiff could perform the requirements of
representative occupation such as could return to her past relevant work as a cashier II. 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
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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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:
The court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is supported by substantial
evidence.
A. Step Three:
The Plaintiff contends that the ALJ erred by not finding her condition meets or medically
equals listing 1.04(a) for disorders of the spine. (ECF No. 8, p. 12).
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The determination of whether a claimant meets or equals an impairment described in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, is made at step three of the
disability determination process. 20 C.F.R. § 416.920(a)(4)(iii). During this step, the ALJ has the
responsibility to decide whether “medical equivalence” has been established. Id. § 416.926(e).
An impairment is medically equivalent under the regulations if it is “at least equal in severity and
duration to the criteria of any listed impairment.” Id. § 416.926(a). If the ALJ finds that a
claimant has an impairment that meets or equals one of the listings, then the claimant will be
found disabled. Id. § 416.920(a)(4)(iii). Carlson v. Astrue 604 F.3d 589, 592 (C.A.8
(Iowa),2010).
In order for Plaintiff’s impairment to meet a listing, Plaintiff must provide medical
evidence proving that her impairments met all of the listing specified criteria. Gonzales, 465 F.3d
at 894. In order to meet listing 1.04A, Plaintiff must prove that she had a disorder of the spine
with evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness), sensory
or reflex loss, and positive straight leg raising test. See 20 C.F.R. Pt. 404, Subpt. P, App.
1, listings 1.04.
The March 2011 consultative examination from Dr. Magness that Plaintiff points to
shows that Plaintiff had no evidence of muscle atrophy and intact and symmetric deep tendon
reflexes (Tr. 590). Similarly, Plaintiff’s treatment records showed that Plaintiff had normal
neurological functioning with symmetrical reflexes and full motor strength (Tr. 297, 308).
Moreover, Plaintiff’s treatment records also demonstrated that Plaintiff’s back, neck, and
extremities were within normal limits and that Plaintiff had full range of motion in her
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extremities, no evidence of tenderness, and normal gait and station (Tr. 260, 418, 425, 434, 440,
528). In fact, Plaintiff oftentimes denied having any back pain to her physicians (Tr. 417, 425,
432, 434, 439, 570). The court finds that Plaintiff failed to meet her burden of showing that she
met all the criteria for any listed impairment. See Gonzales, 465 F.3d at 894
B. Credibility
The Plaintiff also contends the ALJ failed to properly assess her credibility. (ECF No. 8,
p.. 12).
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)). “If an ALJ explicitly discredits the claimant's testimony and gives
good reason for doing so, we will normally defer to the ALJ's credibility determination.” Gregg
v. Barnhart, 354 F.3d at 714 (Iowa, 2003); Human v. Barnhart, 2006 WL 2422182, 3 (D.Kan.)
(D.Kan.,2006).
This court concludes that, based upon and review of the record and because the ALJ gave
several valid reasons, the ALJ's determination that Plaintiff was not entirely credible is entitled
to deference. See Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir.2012).
C. Medication
The Plaintiff contends that the ALJ failed to take into account the effects of her
medications in determining her 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. §§
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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
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).
At the time the Plaintiff filed for Disability she claimed she was taking bentyl2 , mentax3,
and vitamin d. (T. 159). The Plaintiff testified that sometimes she would get a “little drowsey”

2

Dicyclomine relieves spasms of the muscles in the stomach and intestines. Dicyclomine is used to treat
functional bowel or irritable bowel syndrome. See www.drugs.com
3

Butenafine topical is an antifungal medication. Butenafine topical prevents fungus from growing on your
skin. Butenafine topical is used to treat athlete's foot, jock itch, and ringworm.

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from her medication. (T. 35), but at that time she was talking about pain medication and not her
bentryl. The Plaintiff testified, when asked what she was taking, “I think it’s Oxycodone. I get
the generic, so I think that is the name of it.” (T. 35).
In April 2010 the Plaintiff indicated that she was on Vitamin D, Dicyclomine (Bentyl),
Diovan4, and Hydrochlorothiazide (T. 576). There was no prescription for pain medication. The
Plaintiff’s treating physician, in November 2010, noted that the MRI “showed merely
degenerative disease and minimal disk bulging with no obvious compression of nerves noted”
and his plan was to start the Plaintiff on Amitriptyline5. (T. 572). The only notation of
medication is that the Plaintiff’s hypertension was controlled with medication.
The court finds that the ALJ’s RFC determination properly considered the effects of her
medication.
D. Vocational Expert
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,

4

Diovan HCT (Hydrochlorothiazide is a thiazide diuretic (water pill) that helps prevent your body from
absorbing too much salt, which can cause fluid retention. See www.drugs.com
5

Amitriptyline is a tricyclic antidepressant. It affects chemicals in the brain that may become unbalanced.
Amitriptyline is used to treat symptoms of depression.

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1230 (8th Cir.1994). A hypothetical need not use specific diagnostic or symptomatic terms
where other descriptive terms can adequately define the claimant's impairments. Roe v. Chater,
92 f.3d 672, 676 (8th Cir. 1996).
The ALJ stated that “In her work history report, the claimant wrote that she had been a
cashier at A to Z Outlet from September 2008 to February 2009 (exhibit 5E). The work history
report also indicates that the claimant worked at that job for a long enough period of time to have
learned how to do it. In addition, the claimant's earnings record shows that the claimant had
earnings at the substantial gainful activity level (exhibit 3D and 4D).
In comparing the claimant's residual functional capacity with the physical and mental
demands of this work, the undersigned finds that the claimant is able to perform it as actually and
generally performed. According to the vocational expert, the job of cashier II is performed at the
light exertional level and is considered semiskilled. The undersigned asked the vocational expert
if the claimant had the same residual functional capacity as found above, could she return to any
of her past relevant work, and he testified that the claimant could return to her past relevant
work as a cashier II.
The court finds that the ALJ's hypothetical to the vocational expert (VE) accounted for all
of Plaintiff's proven impairments, see Buckner v. Astrue, 646 F.3d 549, 560–61 (8th Cir.2011)
(VE's testimony constitutes substantial evidence when it is based on hypothetical that accounts
for all of claimant's proven impairments; hypothetical must include impairments that ALJ finds
substantially supported by record as a whole).
The ALJ’s determination that the Plaintiff could return to her past relevant work is
supported by the record as a whole.
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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 November 15, 2013.

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

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