Brison v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on February 10, 2014. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BRENDA K. BRISON

v.

PLAINTIFF

CASE NO.

12-2328

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) 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 on May 7, 2008 , alleging an onset date of
March 24, 1997 (T. 162), due to plaintiff’s back problems, stage 4 cirrhosis of the liver, breast
cancer, and being diabetic. (T. 190). She subsequently amended her onset date to February 1,
2001. (T. 190). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff

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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then requested an administrative hearing, which was held on October 1, 2009 (T. 37-50)2 and
August 19, 2011 (T. 51-64). Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 60 and 62 years of age
respectively and possessed a GED. The Plaintiff had past relevant work (“PRW”) experience as
a meat wrapper and housekeeper (T. 191).
On October 4, 2011, the Administrative Law Judge (“ALJ”) concluded that plaintiff’s
status post breast cancer did not constitute a severe impairment. T. 14. The ALJ found that
plaintiff was "not under a disability, as defined in the Social Security Act, at any time from
February 1, 2001, the alleged onset date, through September 30, 2001, the date last insured (20
CFR 404.1520(c))." On October 31, 2012, the Appeals Council denied Plaintiff’s request
for review (Tr. 1). Therefore, the ALJ’s final decision of October 4, 2011 became the
Commissioner’s final administrative decision. Plaintiff subsequently filed this action in federal
court seeking review.
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

2

The completed record was lost and the case was remanded by the Appeals Council to complete the record.

(T. 81).

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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).
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
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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. Relevant Time Period
The ALJ noted that the Plaintiff's "earnings record shows that the claimant has
acquired sufficient quarters of coverage to remain insured through September 30, 2001
(hereinafter "the date last insured"). Thus, the claimant must establish disability on or before
that date in order to be entitled to a period of disability and disability insurance benefits." T. 10.
This finding is not contested.
B. Step Two Determination
The Plaintiff contends that the ALJ erred in determining that the Plaintiff did not have a
severe impairment and concluding the sequential evaluation at step two. (ECF No. 13, p. 9).
Step two of the regulations involves a determination, based on the medical evidence,
whether the claimant has an impairment or combination of impairments that significantly limits
the claimant's ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii) At step two of the sequential evaluation process, the claimant bears the burden
of proving that he has a severe impairment. Nguyen v. Chater, 75 F.3d 429, 430-431 (8th Cir.
1996). An impairment or combination of impairments is not severe if there is no more than a
minimal effect on the claimant’s ability to work. See, e.g., Nguyen, 75 F.3d at 431. A slight
abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on
the ability to do basic work activities is not a severe impairment. SSR 96-3p, 1996 WL 374181
(1996); SSR 85-28, 1985 WL 56856 (1985). If the claimant is not suffering a severe impairment,
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he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(c).
1. Lymphedema3 and Cellulitis4
The Plaintiff contends that ALJ did not properly evaluate her lymphedema and Cellulitis.
On February 11, 2000. Plaintiff was diagnosed with infiltrating ductal carcinoma of the right
breast, and she underwent right partial mastectomy by Thomas Kelly, M.D., a surgeon (Tr. 291).
Plaintiff completed her course of radiotherapy for right breast carcinoma on May 2, 2000.
She tolerated the treatment very well and it was noted that she was on Tamoxifen5. (Tr. 290).
On May 1, 2000, Doctors again noted Plaintiff had completed radiation treatment and stated that
was the recommended protocol (Tr. 290). Plaintiff experienced some firmness and discomfort on
the right breast which was not unexpected (Tr. 268). Doctors reported that Plaintiff would be
allowed to return to work in the near future and she was given a release to that effect (Tr. 269).
Plaintiff was treated for irritation of the right breast with antibiotics on July 26, 2000 by David
Hunter, M.D. (Tr. 268).90). She began taking Tamoxifen as a measure to prevent recurrence of
the cancer (Tr. 290). On August 3, 2000, Dr. Kelly reported that Plaintiff had been released to
work earlier but had cellulitis of the right breast and did not return to work after she was last

3

Lymphedema refers to swelling that generally occurs in one of your arms or legs. Although lymphedema
tends to affect just one arm or leg, sometimes both arms or both legs may be swollen. Lymphedema is caused by a
blockage in your lymphatic system, an important part of your immune and circulatory systems. The blockage
prevents lymph fluid from draining well, and as the fluid builds up, the swelling continues. Lymphedema is most
commonly caused by the removal of or damage to lymph nodes as a part of cancer treatment. www.mayoclinic.org
4

Cellulitis is a common, potentially serious bacterial skin infection. Cellulitis appears as a swollen, red area
of skin that feels hot and tender, and it may spread rapidly. www.mayoclinic.org.
5

Tamoxifen blocks the actions of estrogen, a female hormone. Certain types of breast cancer require
estrogen to grow. Tamoxifen is used to treat some types of breast cancer in men and women.

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seen. He increased her Ceftin6 to 500 mg t.i.d and prescribed Lodine7 400 mg q.i.d. (Tr. 264).
On August 10, 2000 Dr. Kelly again saw the Plaintiff who was complaining about her right
breast. He simply noted that she has “resolving discomfort in the right breast and that she had a
full range of motion. ” He also noted that she had some superficial burns on her right arm that
she sustained while “assisting at her husbands welding shop.” (T. 263). On September 7, 2000,
Cooper Clinic reported that Plaintiff still had some episodic swelling of the right posterior arm
which was not severe. Plaintiff had persistent swelling of the right breast and some redness. She
was prescribed an antibiotic which did not alleviate her symptoms. But she reported that the
swelling and redness subsided somewhat (Tr. 260). On September 21, 2000, Lester Barnes,
M.D., reported that Plaintiff’s right arm looked really good and her liver was not enlarged. Dr.
Barnes opined that he believed she was doing exceptionally well (Tr. 298).
In May 2001 Dr. Barnes noted that the Plaintiff had a “lymphangitis of the breast from
which she spontaneously recovered.” (T. 319). The Plaintiff then saw Dr. Barnes from February
2002 through August 2003 and all of her exams were normal. (T. 435, 434, 433, 432, 431, 430,
428). In November 2003 Dr. Barnes made reference to carpal tunnel surgery that the Plaintiff
had undergone on her right wrist and she developed cellulitis of the right arm with lymphangitis
(T. 426) but he did not attribute this to her breast cancer. It seems clear to the court that the
Plaintiff’s treating physician was of the opinion that the lymphangitis evidenced shortly after the
Plaintiff’s breast surgery had resolved. Impairments are generally not considered severe when

6

Ceftin is in a group of drugs called cephalosporin (SEF a low spor in) antibiotics. It works by fighting
bacteria in your body.
7

Lodine is in a group of drugs called nonsteroidal anti-inflammatory drugs (NSAIDs). Lodine works by
reducing hormones that cause inflammation and pain in the body.

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they are stabilized by treatment. See Johnston v. Apfel, 210 F.3d 870, 875 (8th Cir. 2000).
2. Hand Tremor
The Plaintiff’s complaint of hand tremor first appears in August 2000 as a subjective
complaint. (T. 262). Plaintiff was examined by John Kareus, D.O., at Cooper Clinic on October
6, 2000 (Tr. 57-259). Plaintiff reported a tremor in her right hand, and she alleged some
staggering for the last 3 or 4 months but just as she initiated walking (Tr. 257). Plaintiff also
reported 2 headaches per week (Tr. 257). Plaintiff reported she could not work. Her mental status
and motor examination were normal, and she exhibited 5/5 motor strength in both upper and
lower extremities. Plaintiff’s reflexes were intact and her coordination including gait and station
were normal (Tr. 258-259). Plaintiff’s spontaneous gait was normal and she was able to walk on
her heels and toes with negative Romberg testing (Tr. 259). Dr. Kareus could not detect any right
hand tremor at the examination. He also observed no rigidity or poverty of movement, she
ambulated normally, and there was nothing to suggest an essential tremor (Tr. 259). Dr. Kareus
did not prescribe any medication for tremors.
On November 22, 2000, Plaintiff was examined by Ronald Robinson, MD., at Cooper
Clinic. Dr. Robinson could not detect or demonstrate any hand tremors and he could not palpate
her spleen or liver, both of which appeared normal (Tr. 255). On January 2, 2001, Dr. Kareus
reported he suspected Plaintiff might have possible Parkinson’s disease with the tremor involving
her arm. However, he reported that the tremor was about the same primarily on the right; and
there were no other features. He reported the tremor was minimal and not very apparent during
the examination (Tr. 253). Dr. Kareus once again opined that Plaintiff showed no significant
tremor on examination and no rigidity to palpation. Her gait was normal (Tr. 253). He requested
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a six month follow-up on the tremor (Tr. 253).
There does not appear to be another medical record dealing with hand tremors until
January 23, 2006 when Dr. Kareus stated that he thought that the “tremor is really more of an
essential tremor by history although it is totally unilateral.” (T. 478) Again Dr. Kareus did not
prescribe any medication for the Plaintiff although he did discuss medication with the Plaintiff.
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).
The court also notes that the Plaintiff did not list Hand Tremor as a basis for her
disability. (T. 190). The fact that the plaintiff did not allege the impairment as a basis for her
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).
The court also notes that in the Plaintiff’s Function Report completed in June 2008 the
Plaintiff listed “cross stitch” as one of her hobbies. (T. 206). It is impossible for court to
understand how the Plaintiff’s hand tremor can be a sever impairment when she can perform
such a detailed task as cross stitching. Regardless, there is no evidence that the reported hand
tremor was sever on September 30, 2001.
3. Dr. Carrick’s Opinion
The Plaintiff contends that the ALJ did not give proper weight to the opinion of the
Plaintiff treating physician. (ECF No. 13, p. 11).
Dr. Alice Davidson, a non-examining consultive physician, was of the opinion in July
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2008 that there was “insufficient medical evidence to rate the physical impairments on or before
the date last insured of 9/30/2001.” (T. 310). Dr. Bill Payne reviewed and affirmed Dr.
Davidson’s opinion in September 2008. (T. 314).
In June 2009 Dr. Carrick issued a Medical Source Statement which found that the
Plaintiff could lift less than 10 pounds occasionally, less than 10 pounds frequently, stand and/or
walk for less than 2 hours in an 8 hour day, (T. 330), and would have to alternate between sitting
and standing to relieve pain. She had no ability to push and pull with her upper extremities and
limited ability with her lower extremities. He also found that she could never climb, balance,
kneel, crouch or crawl. (T. 331)8.
Dr. Carrick’s name first appears in a note by ANP Jones’ in May 2004 concerning her
TSH (thyroid stimulating hormone)level which ANP Jones noted was mildly elevated. The
Plaintiff told ANP Jones that “she had this repeated at Dr. Carrick’s office, and apparently it
came back normal.” ANP Jones advised the Plaintiff to exercise and loose weight. The balance
of her exam was normal.(T. 422). There are no treatment notes in the record prepared by Dr.
Carrick and there is no other place in the record that the court can find or has been directed to
indicating that Dr. Carrick treated the Plaintiff prior to 2004.
It was proper for the ALJ to decline to give weight to the vague, conclusory, and
unsupported opinions of treating physician (Dr. Carrick) on Plaintiff’s residual functional
capacity, See Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010). It was also proper because Dr.
Carrick’s opinions were contrary to the opinions of her treating doctors at the time. See

8

Dr. Carrick issued another MSS on October 22, 2010 but it makes no claim to address the Plaintiff’s
condition prior to September 1, 2001 and only references medical conditions that the Plaintiff suffered subsequent to
September 1, 2001. (T. 570-572). This MSS was not considered by the court.

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Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010) (explaining that “[w]hen a treating
physician’s opinions are inconsistent or contrary to the medical evidence as a whole, they are
entitled to less weight” (internal quotation marks and citation omitted)); Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010) (holding that the ALJ properly discounted the treating physician’s
opinion that consisted of three checklist forms, cited no medical evidence, and provided little to
no elaboration); Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (recognizing that “[w]e
have upheld an ALJ’s decision to discount a treating physician’s [medical source statement]
where the limitations listed on the form stand alone, and were never mentioned in [the
physician’s] numerous records o[f] treatment nor supported by any objective testing or
reasoning” (first and second alterations added) (internal quotation marks and citation omitted)).
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 February 10, 2014.

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

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