Craig v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on June 1, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KAREN D. CRAIG
Civil No. 14-2094
CAROLYN COLVIN, Commissioner
Social Security Administration
Plaintiff, Karen Craig, 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 her
claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act
(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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).
Plaintiff filed her application for SSI on December 5, 2011, alleging an onset date of
January 1, 2004, due to depression, anxiety, rheumatoid arthritis, hepatitis C, fibromyalgia, and
neck pain. Tr. 29, 177-180, 205-213. The Commissioner denied Plaintiff’s applications initially
and on reconsideration.
Tr. 55-58, 61-63. An Administrative Law Judge (“ALJ”) held an
administrative hearing on December 6, 2012. Tr. 25-46.
At the time of the hearing, the Plaintiff was 50 years old and possessed a limited education.
Tr. 17. Plaintiff had no past relevant work (“PRW”) experience. Tr. 17, 33.
On July 5, 2013, the ALJ found Plaintiff’s major depressive disorder, posttraumatic stress
disorder (“PTSD”), and personality disorder were severe, but did not meet or medically equal one
of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 12-15. After partially
discrediting Plaintiff’s subjective complaints, the ALJ determined that Plaintiff retained the
residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with
the following limitations:
The claimant is able to perform work where interpersonal contact is incidental to
the work performed and where the complexity of tasks is learned and performed by
rote with few variables and little judgment. The supervision required is simple,
direct, and concrete.
Tr. 15. With the assistance of a vocational expert, The ALJ then found Plaintiff could perform
work as a maid or housekeeper, poultry line deboner, and automatic sewing machine operator. Tr.
The Appeals Council denied review on March 18, 2014. Tr. 1-3. Subsequently, Plaintiff
filed this action. ECF No. 1. This case is before the undersigned by consent of the parties. ECF
No. 7. Both parties have filed appeal briefs, and the case is now ready for decision. ECF Nos. 12,
This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. 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. We must affirm the ALJ’s decision 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, we must affirm the decision of the ALJ. 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)(c). A Plaintiff
must show that his or her disability, not simply their impairment, has lasted for at least twelve
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given her age, education, and experience. 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).
Plaintiff raises the following issues on appeal: 1) The ALJ failed to fully and fairly develop
the record, 2) The ALJ made an improper finding at Step two, 3) The ALJ’s RFC determination is
inconsistent with the record, and 4) the ALJ determined Plaintiff could perform jobs that she cannot
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
A. Duty to Develop the Record:
In her first argument, Plaintiff asserts that the ALJ failed to develop the record with regard
to her alleged Lyme disease and hepatitis C. Specifically, she contends he should have ordered
laboratory tests to confirm or negate these purported diagnoses. The ALJ does owe a duty to a
claimant to develop the record fully and fairly to ensure his decision is an informed decision based
on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). However, the ALJ
is only required to develop a reasonably complete record. See Clark v. Shalala, 28 F.3d 828, 830
(8th Cir. 1994). He is not required to order a consultative evaluation for every alleged impairment.
Matthews v. Bowen, 879 F.3d 424 (8th Cir. 1989). Rather, the ALJ has the authority to order
examination if the existing medical sources do not contain sufficient evidence to make an informed
decision. Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994). Thus, in determining whether
an ALJ has fully and fairly developed the record, the proper inquiry is whether the record contained
sufficient evidence for the ALJ to make an informed decision. See Haley v. Massanari, 258 F.3d
742, 748 (8th Cir. 2001).
Although the Plaintiff has reported a diagnosis of hepatitis C to various healthcare
providers, the record contains no objective medical evidence to support these allegations. See
Marolf v. Sullivan, 981 F.2d 976, 978 (8th Cir. 1992) (proof of a disabling impairment must be
supported by at least some medical evidence). Plaintiff advised Dr. Kathleen Kralik, during her
mental evaluation, that she was diagnosed with hepatitis C by the Health Department, but never
followed-up to have the diagnosis confirmed. She also failed to seek out treatment for this alleged
impairment. Moreover, in July 2011, she refused testing for hepatitis C when offered by her
treating physician. Tr. 288. And, while hospitalized for bronchitis in October 2012, laboratory
testing revealed normal serum glutamic oxaloacetic transaminase (“SGOT”) and serum glutamic
pyruvic transaminase (“SGPT”) enzymes, signaling normal heart and liver function. Tr. 361-521.
The Plaintiff also alleges to have suffered a tick bite in her distant past. However, we can
find no evidence to document a diagnosis of or treatment for Lyme disease either before or during
the relevant time period. See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding that
lack of objective medical evidence is a factor an ALJ may consider). While it is true that she did
complain of flu-like symptoms and joint pain, which can be symptoms associated with Lyme
disease, these symptoms are also associated with many other impairments. And, we can find
nothing to suggest that Plaintiff or her treating doctor(s) were sufficiently concerned to order the
laboratory tests necessary to diagnose acute or chronic Lyme disease. In fact, she told Dr. Kathleen
Kralik, during her mental assessment, that she had “never suffered until I had lyme disease. It
took three months to recover.” Tr. 277.
Therefore, it is the opinion of the undersigned that the ALJ was under no duty to order
consultative examinations or testing to further develop the record with regard to these impairments.
Sadly, the Plaintiff is attempting to shift the burden of persuasion and production onto the ALJ,
when it was her own failure to obtain treatment that defeated her claim. See Stormo v. Barnhart,
377 F.3d 801, 806 (8th Cir. 2004) (Plaintiff bears the burden of persuasion to prove disability).
Next, the Plaintiff argues that the ALJ improperly dismissed her Lyme disease, hepatitis
C, asthma, and COPD as non-severe impairments. 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)). The impairment
must result from anatomical, physiological, or psychological abnormalities, which can be shown
by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the claimant’s statement of symptoms. 20 C.F.R. § 404.1508.
After reviewing the entire record, we find no error in the ALJ’s step two analysis. As
previously noted, the record contains no evidence to support the Plaintiff’s contention she suffered
from hepatitis C or Lyme disease. The record does reveal doctors have treated her for bronchitis
and multiple arthralgias, however, she was treated for her symptoms on only four occasions during
the relevant time period. Tr. 341-342, 351-355, 361-521, 523-541. See Hutton v. Apfel, 175 F.3d
651, 655 (8th Cir. 1999) (failure of claimant to maintain a consistent treatment pattern for alleged
mental impairments is inconsistent with the disabling nature of such impairments). Although she
was said to be receiving her medications through the patient assistance program, Plaintiff was not
entirely compliant with the medications prescribed. See Wagner v. Astrue, 499 F.3d 842, 851 (8th
Cir. 2007) (a failure to follow a recommended course of treatment weighs against credibility). In
May 2012, she reported being out of several of her medications and unable to obtain them due to
financial constraints. Tr. 351-355. Further, in October 2012, Plaintiff stated that she was no longer
using her inhalers because she could not afford them. Tr. 361-521. However, as previously noted,
she was able to afford cigarettes, smoking one package per day, and to purchase marijuana. See
Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) (noting that a failure to follow prescribed
treatment may be grounds for denying an application for benefits); Riggins v. Apfel, 177 F.3d 689,
693 (8th Cir. 1999) (noting that despite the claimant’s claim that he could not afford medication,
there was no evidence that he chose to forgo smoking three packs of cigarettes a day to help finance
Although the Plaintiff does have a history of treatment for asthma, chronic bronchitis, and
COPD, she was treated for this on only one occasion during the relevant time period. Tr. 361-521.
See Edwards v. Barnhart, 314 F.3d at 967 (holding that ALJ may discount disability claimant’s
subjective complaints of pain based on the claimant’s failure to pursue regular medical treatment).
In October 2012, records indicate she was hospitalized for three days due to an exacerbation of her
COPD (pneumonia). Following the administration of breathing treatments and intravenous
antibiotics and steroids, doctors released her home in improved condition. See Patrick v. Barnhart,
323 F.3d 592, 596 (8th Cir. 2003) (holding if an impairment can be controlled by treatment or
medication, it cannot be considered disabling).
We also note that the Plaintiff’s credibility and reported activities call into question the
severity of her alleged physical impairments. Prior to her alleged onset date, her own treating
source questioned her credibility. His staff members observed her exit the building, walk across
the parking lot, and hop into her vehicle, with no evidence of stiffness or limp, after being treated
for alleged generalized pain. Tr. 288-290. Further, although the doctor documented a dysthymic
and anxious mood while examining her, Plaintiff was later seen laughing with her boyfriend. Tr.
290. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (Plaintiff’s encounters with doctors
appeared to be linked primarily to quest to obtain benefits, rather than to obtain medical treatment).
Similarly, Dr. Kralik used the words manipulative, attention-seeking, and theatrical to describe
her. Tr. 276-280. And, we note some inconsistencies in her statements concerning drug and
alcohol abuse, oftentimes alleging to be drug free while testing positive for marijuana.
Plaintiff’s reported activities are also bothersome. On the one hand, she argues that her
pain and lung impairments are severe enough to restrict her ability to perform work-related
activities. On the other, she reports the ability to care for an elderly gentleman until his death in
January 2012, assist her boyfriend’s mother, grow her own garden, carry water to her trailer (she
did not have running water), and collect scrap metal. Tr. 277, 341. And, although requested by
the agency, she did not complete an adult function report.
Accordingly, for the reasons laid out above, the undersigned finds no merit in the Plaintiff’s
argument that the ALJ wrongfully concluded that her hepatitis C, Lyme disease, and lung
impairments were non-severe.
Next, the Plaintiff contests the ALJ’s RFC determination. RFC is the most a person can
do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability claimant has the
burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004). “The ALJ determines a claimant’s RFC based on all relevant evidence in the record,
including medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his or her limitations.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009); see
also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (ALJ is responsible for determining RFC
based on all relevant evidence, including medical records, observations of treating physicians and
others, and claimant’s own description of his limitations). 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); see also Jones, 619 F.3d at 971 (RFC finding must be supported by some medical
Plaintiff states that the ALJ’s RFC assessment is flawed because it does not incorporate
physical limitations related to her pain, asthma, and COPD. Specifically, she contends the RFC
should include exertional limitations (sitting, standing, walking, lifting, carrying, pushing pulling,
reaching, bending, and stooping) and environmental limitations, as well as more restrictive
limitations related to her personality disorder. We disagree.
For the reasons outlined in the sections above, the undersigned finds no error in the ALJ’s
failure to include exertional and environmental limitations in his RFC determination. Failure to
seek out consistent treatment, failure to take medications as prescribed, ability to perform certain
activities, and credibility issues are all proper grounds for discrediting a Plaintiff’s subjective
complaints of pain. Additionally, we note hospital records from October 2012, indicating that she
had no limitations with regard to mobility or muscle strength. Tr. 378. She was able to walk
outside of her room at least twice per day and inside her room at least once every two hours. Tr.
As for the Plaintiff’s mental impairments, we note that both Drs. Kralik and Efird
examined her and noted no more than moderate impairments. Dr. Kralik concluded that her
ability to carry out activities of daily living was adequate, her ability to cope with the typical
mental/cognitive demands of basic work tasks was mildly to moderately impaired but adequate,
and her ability to attend to and sustain concentration and persistence was mildly to moderately
impaired. Tr. 283-284. Similarly, Dr. Efird found moderate limitations with regard to her ability
to make judgments on complex decisions and mild to moderate limitations with regard to her
ability to interact appropriately with others, respond to normal work situations, and respond to
changes in a routine setting. Tr. 548-549. While Dr. Efird did diagnose the Plaintiff with major
depressive disorder, PTSD, and personality disorder not otherwise specified, Plaintiff did not
seek out formal mental health treatment for her alleged impairments. See Kirby v. Astrue, 500
F.3d 705, 709 (8th Cir. 2007) (lack of formal treatment by a psychiatrist, psychologist, or other
mental health professional is a significant consideration when evaluating Plaintiff’s allegations
of disability); Pearsall v. Massanari, 274 F.3d 1211, 1218–19 (8th Cir. 2001) (ALJ may reject
the opinion of any medical expert where it is inconsistent with the medical record as a whole).
And, although she was able to obtain her medications through the prescription assistance
program, she failed to take her medications as prescribed. Tr. 353, 357-359. We also note that
the Plaintiff was using marijuana during the majority of the relevant time period, which could
also be responsible for some of her symptomology.
Accordingly, it is the opinion of the undersigned that substantial evidence supports the
ALJ’s determination that the Plaintiff could perform work at all exertional levels with mental
Step 5 Analysis:
Finally, the Plaintiff avers that the ALJ failed to meet his burden at Step 5 of the sequential
analysis. It is her argument that the hypothetical questions posed to the vocational expert did not
contain all of her limitations, rendering the vocational expert’s testimony null and void. However,
“[t]he ALJ’s hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a whole.” Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation and citation omitted).
Here, the ALJ’s hypothetical question included all of the Plaintiff’s limitations found to
exist by the ALJ and set forth in the ALJ’s description of the Plaintiff’s RFC. Therefore, based on
our previous conclusion, see supra Part C, that the ALJ’s findings of Plaintiff’s RFC are supported
by substantial evidence, we hold that the hypothetical question was therefore proper, and the VE’s
answer constituted substantial evidence supporting the Commissioner’s denial of benefits. Id.
Plaintiff also asserts that the vocational expert testified that the limitations imposed by Dr.
Brad Williams, a non-examining, consultative psychologist, would preclude the Plaintiff from
performing all work.1 However, she fails to also state that Dr. Williams specifically found her
capable of performing “work where interpersonal contact is incidental to work performed, e.g.
assembly work, complexity of tasks is learned and performed by rote, few variables, little
judgment: supervision required is simple, direct and concrete.” Tr. 318. And, this is the exact
statement used by the ALJ in the hypothetical question he posed to the vocational expert. In
response, the expert stated that the Plaintiff could perform work that exists in significant numbers
in the national economy, and identified several such jobs. As such, we find no error in the ALJ’s
step five analysis.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision should
After reviewing the Plaintiff’s medical records, Dr. Williams completed a mental RFC assessment. Tr. 316-336.
He found her to have moderate limitations in the following areas: the ability to understand, remember, carry out
detailed instructions; maintain attention and concentration for extended periods; make simple work-related
decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms;
perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and
respond appropriately to criticism from supervisors; set realistic goals; and, make plans independently of others.
be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be dismissed with
DATED this 1st day of June, 2015.
Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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