Griffin v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on January 9, 2014. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KATHY A. GRIFFIN

v.

PLAINTIFF

CASE NO.

13-2041

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 January 19, 2010 , alleging an onset date of
December 5, 2008, due to plaintiff’s weak heart, back injury, depression, nervous disorder,
hypertension, restless leg syndrome, anxiety, insomnia, and numbness in her arm. (T. 149).
Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on August 9, 2011. Plaintiff was present and represented

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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by counsel.
At the time of the administrative hearing, plaintiff was 52 years of age and possessed a
High School education. The Plaintiff had past relevant work (“PRW”) experience as an
Administrative Assistant and book keeper (T. 151).
On October 26, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s cardiomyopathy, atrial septal defect (ASD), hypertension (HTN), major
depressive disorder (MDD), and generalized anxiety disorder (GAD) did not meet or equal any
Appendix 1 listing. T. 20. The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to perform light work with additional restriction. T. 21. With the assistance of
a vocational expert, the ALJ then determined Plaintiff could perform the requirements of
representative occupation such as assembly worker, fishing stringer assembler, and gasket
inspector. . T. 25.
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,
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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
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.
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A. Severe Impairments:
The Plaintiff contends the ALJ erred because he did not consider her upper extremity
impairment to be severe. (ECF No. 12, p. 8).
A “severe impairment is defined as one which ‘significantly limits [the claimant’s]
physical or mental ability to do basic work activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006) (quoting 20 C.F.R. § 404.1520(c)). If the impairments result in no more than
minimal functional limitations, the impairments are not severe. Pepper ex rel. Gardner v.
Barnhart 342 F.3d 853, 854 (C.A.8 (Mo.),2003); ; Social Security Ruling 96-3p. The claimant
has “the burden ... of showing ... that [s]he has a medically severe impairment or combination of
impairments.” Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d
119 (1987). Riley v. Shalala 18 F.3d 619, 621 (C.A.8 (Ark.),1994).
The Plaintiff had a EMG/NCV test performed in April 2003 after complaining of
numbness and pain in her right arm and hand. (T. 299). The test results were abnormal and the
doctor found that there was evidence of subacute radiculopathy, most likely C8, less likely C7 but
there was no evidence of CTS (Carpal Tunnel Syndrome).
A review of the Plaintiff’s medical record does not reveal that she sought any further
treatment for this condition. 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). Neither of Plaintiff’s treating physicians during the
relevant period (Dr. Jefferson or Dr. Dudding) diagnosed Plaintiff with an impairment related to
her arms or hands (Tr. 224, 226, 284-285, 298). Indeed, Dr. Dudding’s examination of her
extremities was normal, revealing normal strength and tone and no swelling (Tr. 285). Plaintiff
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did not complain of symptoms in regard to her hands or arms to Dr. Jefferson and Dr. Dudding.
The court also notes that the Plaintiff was gainfully employed from 2003 through 2008 (T.
121) and worked part time during 2009 (Id.). Absent a showing of deterioration, working after the
onset of an impairment is some evidence of an ability to work. See Goff v. Barnhart, 421 F.3d
785, 793 (8th Cir.2005).
Plaintiff failed to meet her burden of proof that her right arm condition was severe.
Accordingly, substantial evidence supports the ALJ’s finding that Plaintiff’s arm condition was
non-severe.
B. Residual Functional Capacity:
The Plaintiff next contends that the ALJ’s RFC determination was contrary to the
evidence. (ECF No. 12, p. 9)
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
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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).
The ALJ found the Plaintiff had the RFC to:
perform light work as defined in 20 CFR 404.1567(b)2 and 416.967(b).
From a mental standpoint, she is able to perform work where interpersonal contact
is incidental to the work performed, the complexity of tasks is learned and
performed by rote, with few variables and use of little judgment, and the
supervision required is simple, direct and concrete.
Plaintiff alleges that her back pain and heart defect prevent her from performing the
standing and walking requirements of light work. See Pl.’s Br. at p. 10.
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

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Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability
to do substantially all of these activities.

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1211, 1217 (8th Cir.2002)). 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). 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). The court should , “ defer to the ALJ's
determinations regarding the credibility of testimony, so long as they are supported by good
reasons and substantial evidence.” Perks v. Astrue 687 F.3d 1086, 1091 (C.A.8 (Ark.),2012).
“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).
The Plaintiff did not seek treatment for back pain or other musculoskeletal complaints
during the relevant period, and her treating doctors did not diagnose her with a back impairment
(Tr. 224-228, 284-287, 296-298). 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 ALJ noted that the Plaintiff testified that she “takes non-prescription ibuprofen for the
pain that lasts all day and into the night and wakes her during sleep.” (T. 21). “The ALJ may
properly consider both the claimant's willingness to submit to treatment and the type of
medication prescribed in order to determine the sincerity of the claimant's allegations of pain.”
Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991) (citations omitted); Gray v. Apfel 192 F.3d
799, 804 (C.A.8 (S.D.),1999). See Hepp v. Astrue, 511 F.3d 798, 807 (8th Cir. 2008) (moderate,
over-the-counter medication for pain does not support allegations of disabling pain).
The ALJ also noted that the Plaintiff had never had any mental health treatment. Banks v.
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Massanari, 258 F.3d 820, 825-26 (8th Cir.2001) (ALJ properly discounted claimant's complaints
of disabling depression as inconsistent with daily activities and failure to seek additional
psychiatric treatment). See 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).
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).
The ALJ also noted that the Plaintiff “stopped working for reasons not related to the
allegedly disabling impairments”. (T. 22). In addition the Plaintiff filed for and received
unemployment benefits after she ceased working. The acceptance of unemployment benefits,
which entails an assertion of the ability to work, is facially inconsistent with a claim of disability.
See Cox v. Apfel 160 F.3d 1203, 1208 (C.A.8 (Mo.),1998) citing Salts v. Sullivan, 958 F.2d 840,
846 n. 8 (8th Cir.1992). Applying for unemployment benefits “may be some evidence, though not
conclusive, to negate” a claim of disability. Jernigan v. Sullivan, 948 F.2d 1070 at 1074(C.A.8
(Mo.),1991)
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This court concludes that, because the ALJ gave several valid reasons for the ALJ's
determination that Plaintiff was not entirely credible, the ALJ's credibility determination is
entitled to deference, see Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir.2012).
2. RFC Determination
The record contains conflicting Residual Functional Capacity assessments between the
Plaintiff’s Treating Physicians and the Consultive Examiners.
A treating physician's medical opinion is given controlling weight if that opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).
These opinions are not automatically controlling, however, because the record must be evaluated
as a whole. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). We will uphold an ALJ's decision
to discount or even disregard the opinion of a treating physician where “other medical
assessments are supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.” Id. at
920-21 (internal quotations omitted).
“When one-time consultants dispute a treating physician's opinion, the ALJ must resolve
the conflict between those opinions.” Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir.2000). The
Eighth Circuit Court of Appeals has upheld the Commissioner's RFC assessment in cases where
the ALJ did not rely on a treating physician's functional assessment of the claimant's abilities and
limitations. 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
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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)
As the ALJ properly observed, the record showed that Plaintiff has been prescribed
medications which have been effective in controlling her symptoms due to her cardiovascular
impairments and hypertension as long as she remains compliant such that she is capable of the
exertional requirements of light work (Tr. 22). Conditions controllable or amenable to treatment
are not disabling. See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001).
The Plaintiff has been advised to stop smoking by her treating physicians but she has
refused to stop. The ALJ noted that “evidence shows the claimant continues to smoke cigarettes
daily, despite the financial cost and medical recommendation to stop.” (T. 22). In addition to the
results of objective medical tests, an ALJ may properly consider the claimant's noncompliance
with a treating physician's directions, Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.2001),
including failing to quit smoking. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997)
(impairments that are controllable or amenable to treatment, including certain respiratory
problems, do not support a finding of disability, and failure to follow a prescribed course of
remedial treatment, including the cessation of smoking, without good reason is grounds for
denying an application for benefits).
A review of the medical records shows that the ALJ properly assessed the Plaintiff’s RFC
and that the ALJ properly discounted the opinions of a consulting psychologist and the Plaintiff’s
treating physician as to Plaintiff's residual functional capacity (RFC), see Renstrom v. Astrue, 680
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F.3d 1057 at 1064 (treating physician's opinion does not automatically control); Charles v.
Barnhart, 375 F.3d 777, 783 (8th Cir.2004) (generally when consulting physician examines
claimant only once, his opinion is not considered substantial evidence).
C. 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,
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'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).
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
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undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.

Dated this January 9, 2014.

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

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