Barragan v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 13, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EMILY BARRAGAN

PLAINTIFF

V.

NO. 13-2002

CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Emily Barragan, 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 claim for a period of disability and disability insurance benefits
(DIB) under the provisions of Title II 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. § 405(g).
I.

Procedural Background:
Plaintiff filed her current application for DIB on March 22, 2011, alleging an inability

to work since March 8, 2011, due to herniated disc, arthritis, two bulging discs, thyroid disease,
high blood pressure, anxiety, high cholesterol, and bladder infections. (Tr. 107-108, 142, 146).
An administrative hearing was held on October 27, 2011, at which Plaintiff appeared with
counsel and testified. (Tr. 35-56).
By written decision dated December 6, 2011, the ALJ found that during the relevant time

1

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.

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period, Plaintiff had an impairment or combination of impairments that were severe degenerative disc disease of the lumbar spine and bipolar disorder. (Tr. 16). 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. 16). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except that she
can only occasionally climb, balance, stoop, kneel, crouch and crawl. The
claimant can do work where interpersonal contact is incidental to the
work performed, the complexity of work is learned by rote with few
variables and little judgment involved and supervision is simple, direct
and concrete.
(Tr. 18). With the help of the vocational expert (VE), the ALJ determined that during the relevant
time period, Plaintiff was unable to perform any past relevant work, but that there were other
jobs Plaintiff could perform, such as unskilled production and assembly work, including
lampshade assemblers, compact assemblers, and shoebucklers and lacers; and checkers, weighers
and examiners, including ordnance check weigher, nut sorter, and zipper trimmer. (Tr. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered additional information and denied that request on October 31, 2012. (Tr. 1-5).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 13, 14).
II.

Applicable Law:
This Court’s role is to determine whether the Commissioner’s findings are supported by

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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 her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
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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.
III.

Discussion:
Plaintiff raises the following issues on appeal: 1) The ALJ erred when assessing

Plaintiff’s RFC by discounting the treating physician’s opinion; and 2) The ALJ erred when
determining the credibility of Plaintiff’s subjective pain by failing to consider the side effects of
Plaintiff’s medication. (Doc. 13).
A.

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 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
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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). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
In the present case, the ALJ found that Plaintiff had the RFC to perform sedentary work
with certain limitations. (Tr. 18). In making this determination, the ALJ considered the medical
records, observations of treating physicians and others, and Plaintiff’s own descriptions of her
limitations. The ALJ discussed the results of the MRI of Plaintiff’s lumbar spine as well as
Plaintiff’s mental impairments. (Tr. 18-19). The ALJ discussed the medical records of Dr.
Michael Cole, who stated in one of his reports that Plaintiff was unable to work due to continued
severe low back pain. (Tr. 19). The ALJ reported that Dr. Cole’s opinion was not consistent with
the amount of activity described by Plaintiff in her function report, where Plaintiff indicated she
was able to clean house, run errands, cook, take care of her daughter, and do laundry. (Tr. 20).
Plaintiff also took her daughter to and from school, and went grocery shopping two times a week
for 45 minutes to one hour. (Tr. 166-167). The ALJ also noted that Plaintiff indicated her
discharge from her last employer was for drugging a fellow employee’s drink. (Tr. 278).
On November 24, 2010, Dr. Thomas E. Cheyne, of River Valley Musculoskeletal Center,
examined Plaintiff, based upon her complaints of chronic low back and left leg pain. (Tr. 194).
His impression was chronic lumbar radiculopathy, to rule out lumbar disk protrusion. (Tr. 194).
Dr. Cheyne reported that he would put Plaintiff on a Medrol Dose-Pak followed by Mobic 15
mg. daily, have her take hot showers twice daily, and that she should remain active but protective
of her back. (Tr. 195). X-rays of Plaintiff’s lumbar spine revealed mild degenerative disk
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changes, most significant at L3-4. (Tr., 196). On December 6, 2010, Plaintiff again saw Dr.
Cheyne, who reported that the MRI scan primarily indicated a left-sided disk herniation at L4-5
with left foraminal and recess stenosis. (Tr. 205). He thought the left L4-5 disk herniation was
the primary source of her symptoms, and had her continue her Mobic and hot showers. (Tr. 205).
He also reported that he would send her to physical therapy three days weekly for modalities to
include lumbar traction and schedule a LESI injection. (Tr. 205).
On April 12, 2011, a Physical RFC Assessment was completed by non-examining
physician Dr. Stephen A. Whaley, who opined that Plaintiff appeared to be capable of
performing light work. (Tr. 264). This opinion was affirmed by Dr. Bill F. Payne on May 13,
2011. (Tr. 273).
In his decision, the ALJ gave Dr. Cole’s opinion “no special significance” because it was
not well supported by the evidence as a whole. (Tr. 19). The ALJ further reported that Dr. Cole’s
opinion was not consistent with the amount of activity described by Plaintiff in her function
report. (Tr. 20). The ALJ also found that Dr. Cole’s opinion was also inconsistent with Dr.
Cheyne’s statement in November 2010 that Plaintiff could remain active but needed to be
protective of her back. (Tr. 20). The ALJ discounted Dr. Whaley’s opinion, as it did not
adequately take into account Plaintiff’s subjective complaints of pain. (Tr. 20).
The Court believes the ALJ gave sufficient reason for the weight he gave the various
physician’s opinions, and that there is sufficient evidence to support the ALJ’s RFC assessment.
Based upon the foregoing, and for those reasons given in Defendant’s well-stated brief,
the Court finds there is sufficient evidence to support the ALJ’s RFC assessment.
B.

Credibility Findings:
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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.
2003).
Plaintiff argues that the ALJ failed to consider the side effects of Plaintiff’s medication.
However, there is no evidence, and Plaintiff does not point to any, that Plaintiff ever complained
to her physicians of any side effects of her medication. Instead, Plaintiff merely points to the
April 1, 2011, Pain and Other Symptoms Agency Form that Plaintiff filled out, wherein she lists
certain side effects of her medication. (Tr. 162). Accordingly, the ALJ was not required to
discuss side effects of Plaintiff’s medication or further develop the record regarding the alleged
side effects. See Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir. 2004).
Based upon the foregoing, as well as those reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the ALJ’s credibility findings.
IV.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision
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should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 13th day of February, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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