English v. Social Security Administration Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 4, 2014. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JEFFREY A. ENGLISH

v.

PLAINTIFF

CASE NO.

13-2078

CAROLYN W. COLVIN, 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 & SSI on November 22, 2010, alleging an
onset date of November 6, 2010, due to plaintiff’s seizures (T. 203). Plaintiff’s applications were
denied initially and on reconsideration. Plaintiff then requested an administrative hearing, which
was held on July 18, 2010. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 21 years of age and possessed a
GED. The Plaintiff had past relevant work (“PRW”) experience as a mechanic, deboner, and
sales associate. (T. 204).
-1-

On July 18m, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s seizure disorder did not meet or equal any Appendix 1 listing. T. 63-64. The
ALJ found that plaintiff maintained the residual functional capacity (“RFC”) to perform a full
range or work at all exertional levels but he could not be exposed to unprotected heights or
dangerous machinery. T. 54. With the assistance of a vocational expert, the ALJ then determined
Plaintiff could perform the requirements of representative occupation such as hand packager
and industrial cleaner. T. 57.
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).
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
-2-

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.
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
-3-

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).
A. Residual Functional Capacity;
The ALJ determined that the Plaintiff had the Residual Functional Capacity (RFC) to
perform a full range or work at all exertional levels but should not be exposed to unprotected
heights or dangerous machinery. (T. 54). The Plaintiff contends that the ALJ did not properly
consider his RFC. (ECF No. 14).

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
-4-

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).
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).
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
-5-

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).
This court concludes that, because the ALJ gave several valid reasons for the ALJ's
determination that Plaintiff was not entirely credible, and based upon an independent review of
the record, the ALJ's credibility determination is entitled to deference, see Renstrom v. Astrue,
680 F.3d 1057, 1067 (8th Cir.2012).
2. Residual Functional Evaluation
On December 30, 2010 Dr. Bill Payne provided a Consultive Evaluation of the Plaintiff
finding that his physical impairments were non-severe. (T. 316). Dr. Payne also noted that the
Plaintiff was “sent seizure forms to complete & also a seizure form to take to his Rx MD for
completion. He did not return these forms.” (Id.). On December 20, 2011 Dr. Steven strode,
MD, reviewed and affirmed Dr. Payne opinion. (T. 341).
To the extent that Plaintiff may have a seizure disorder, which the medical evidence does
not support, the evidence strongly supports the conclusion that his seizures could be controlled
by medication which he never took. Conditions such as seizure disorder that can be controlled by
-6-

treatment or medication cannot be considered disabling. Brown v. Astrue, 611 F.3d 941, 955
(8th Cir. 2010).
In May 2010 the Mercy ER notes stated that the Plaintiff did not see a doctor or take
medication for his seizures. (T. 272). In November 2010, during another visit to the Mercy ER,
the Plaintiff still reported taking no medication. (T. 281). He admitted to smoking a pack of
cigarettes per day and was prescribed the anti-seizure medication Phenytoin. (T. 282). In August
2011 the Plaintiff was again admitted to Mercy ER for seizures but acknowledge that he was not
taking any medication and was diagnosed with seizures but noncompliance with medication
regimen. (T. 320). He was again prescribed Phenytoin by the ER doctor. (T. 321). Even when
the Plaintiff was admitted to Sparks ER in October 2012 they noted that he was non compliant
with his medication. (T. 14). 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 take prescription
medications, Riggins, 177 F.3d at 693.
Although Plaintiff reported he was unable to afford medical treatment, the record showed
that Plaintiff had been able to afford to buy cigarettes, as he smoked a packs of cigarettes per day
(Tr. 154). 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 court finds that the ALJ properly assessed the Plaintiff’s credibility and that his
impairments, to the extent they exist, can be controlled by medication.
IV. Conclusion:
-7-

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 4th day of March 2014.

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

-8-