Jackson v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on December 8, 2016. (lw)

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

CORA L. JACKSON

PLAINTIFF

v.

CIVIL NO. 15-2227

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Cora L. Jackson, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and
XVI 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 protectively filed her current applications for DIB and SSI on January 29,

2013, alleging an inability to work since December 18, 2012, 1 due to back pain and chronic
migraines. (Doc. 14, pp. 58, 174, 181). An administrative hearing was held on December 9,
2013, at which Plaintiff appeared with counsel and testified. (Doc. 14, pp. 31-55).
By written decision dated June 5, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 14,

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Plaintiff amended her onset date to March 3, 2012. (Doc. 14, pp. 16, 281).

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p. 19). Specifically, the ALJ found Plaintiff had the following severe impairment: a disorder
of the back with back pain. 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. (Doc. 14, p. 21). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
the claimant is limited to jobs that can be performed while using a hand-held
assistive device for prolonged ambulation.
(Doc. 14, p. 21). With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a preparation clerk, an assembly worker, and an inspector/checker. (Doc. 14,
p. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on September
24, 2015. (Doc. 14, pp. 5-11). Subsequently, Plaintiff filed this action. (Doc. 1). This case is
before the undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed
appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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. 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

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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).
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).
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 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

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national economy given her age, education, and experience. See 20 C.F.R. §§ 404.1520,
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. See McCoy v.
Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v.
Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520, 416.920.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ failed to fully and fairly

develop the record; 2) the ALJ erred in his credibility analysis; 3) the ALJ’s RFC determination
is improper; and 4) Plaintiff cannot perform the jobs identified at Step Five.
A.

Full and Fair Development of the Record:

The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47
F.3d 935, 938 (8th Cir.1995). The ALJ's duty to fully and fairly develop the record is
independent of Plaintiff's burden to press her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010). The ALJ, however, is not required to function as Plaintiff's substitute counsel, but
only to develop a reasonably complete record. “Reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial.” Shannon v. Chater, 54 F.3d 484,
488 (8th Cir. 1995). “While an ALJ does have a duty to develop the record, this duty is not
never-ending and an ALJ is not required to disprove every possible impairment.” McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
In this case, the record consists of both mental and physical RFC assessments
completed by non-examining medical consultants; a consultative physical evaluation; and
Plaintiff’s medical records which included notes from a neurologist, a rheumatologist and
objective testing. After reviewing the entire record, the Court finds the record before the ALJ

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contained the evidence required to make a full and informed decision regarding Plaintiff’s
capabilities during the relevant time period. Accordingly, the undersigned finds the ALJ fully
and fairly developed the record.
B.

Subjective Complaints and Credibility Analysis:

We now address the ALJ's assessment of Plaintiff's subjective complaints. 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 United States Court of Appeals for the Eighth Circuit 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).
After reviewing the administrative record, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the
record reveals that Plaintiff completed a Function Report on February 18, 2013, wherein she
indicated that she was able to take care of her personal needs, to take her son to school, to
prepare simple meals, to do light housekeeping with breaks, to help care for two small dogs,
to drive, to shop, to watch television, and to keep up with friends on Facebook or by telephone.
Plaintiff indicated that she was able to lift fifteen pounds, and that she could stand, walk or sit
for thirty to forty-five minutes continuously. The record further revealed that Plaintiff was

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able to spend time at Silver Dollar City and to walk around in June of 2013. (Doc. 14, p. 398).
This level of activity belies Plaintiff’s complaints of pain and limitation and the Eighth Circuit
has consistently held that the ability to perform such activities contradicts a Plaintiff’s
subjective allegations of disabling pain. See Hutton v. Apfel, 175 F.3d 651, 654-655 (8th Cir.
1999) (holding ALJ’s rejection of claimant’s application supported by substantial evidence
where daily activities– making breakfast, washing dishes and clothes, visiting friends,
watching television and driving-were inconsistent with claim of total disability).
With respect to Plaintiff’s alleged migraine headaches, the ALJ acknowledged that
Plaintiff had been diagnosed with migraines but did not find that the record supported
Plaintiff’s alleged limitations. In making this determination, the ALJ noted that Plaintiff did
not seek treatment for migraines as often as Plaintiff alleged having them, and that medical
records indicated that the medication used for her migraines was working. While Plaintiff
argues that the ALJ improperly discounted the headache form completed by Dr. Sumer
Phillips, Plaintiff’s primary care physician, a review of the treatment notes indicated that Dr.
Phillips signed the form that had been completed by Plaintiff. (Doc. 14, p. 387). In April of
2013, Dr. Raymond Sorenson noted that Plaintiff was not having to use Treximet, the
medication prescribed to treat her headaches, often for her migraines. (Doc. 14, p. 381). After
reviewing the entire record, the Court finds substantial evidence to support the ALJ’s
determination that Plaintiff does not have disabling migraine headaches.
With respect to Plaintiff’s lower back and lower extremity pain, the record revealed
that Plaintiff was treated conservatively. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998);
See Robinson v. Sullivan, 956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment
contradicted claims of disabling pain). Thus, while Plaintiff may indeed have an injury in her

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lower back and extremities and experience some degree of pain, the medical evidence indicates
that her condition is not of a disabling nature. See Lawrence v. Chater, 107 F.3d 674, 676 (8th
Cir. 1997) (upholding ALJ's determination that claimant was not disabled even though she had
in fact sustained a back injury and suffered some degree of pain); Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993) (holding that, although plaintiff did have degenerative disease of
the lumbar spine, the evidence did not support a finding of disabled).
With regard to Plaintiff's report that her medications cause drowsiness, a review of the
record revealed that Plaintiff denied experiencing side effects at some of her follow-up visits,
and failed to report such side effects to her treating physicians. Richmond v. Shalala, 23 F.3d
1441, 1443-1444 (8th Cir. 1994).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
C.

ALJ’s RFC Determination and Medical Opinions:

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).

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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). “[T]he ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect h[er] RFC.” Id.
When determining RFC, a treating physician's opinion is given more weight than other
sources in a disability proceeding. 20 C.F.R. § 404.1527(c)(2). When a treating physician's
opinion is supported by proper medical testing, and is not inconsistent with other substantial
evidence in the record, the ALJ must give the opinion controlling weight. Id. “However, [a]n
ALJ may 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.”
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (alteration in original) (internal
quotation omitted). Ultimately, the ALJ must “give good reasons” to explain the weight given
the treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical
records when he determined Plaintiff could perform light work with limitations during the time
period in question. The Court notes that in determining Plaintiff’s RFC, the ALJ discussed the
medical opinions of examining and non-examining medical professionals, and set forth the
reasons for the weight given to the opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th
Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians”)(citations omitted); Prosch v. Apfel, 201 F.3d 1010 at 1012 (the

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ALJ may reject the conclusions of any medical expert, whether hired by the claimant or the
government, if they are inconsistent with the record as a whole).
With respect to the medical source statement (Statement), completed by Plaintiff’s
treating physician, Dr. George Howell, indicating that Plaintiff could perform less than
sedentary work, the Court finds that the ALJ properly discounted this Statement because the
statement contained limitations that did not exist in Dr. Howell’s treatment notes, and were not
corroborated through objective medical testing. Anderson v. Astrue, 696 F.3d 790, 794 (8th
Cir. 2012) (citations omitted).
The Court notes that Dr. Chester Lawrence Carlson, a consultative examiner, examined
Plaintiff in March of 2013, and opined that Plaintiff was moderately limited in her ability to
bend, squat, walk or stand for long periods secondary to back pain. While Dr. Carlson did not
complete a RFC assessment, Drs. Dan Gardner and Jonathan Norcross, both non-examining
medical consultants, reviewed the record which included Dr. Carlson’s General Physical
Examination, and opined Plaintiff could perform light work with limitations. After reviewing
the entire transcript, the Court finds substantial evidence supporting the ALJ’s RFC
determination for the time period in question.
D.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set
forth the impairments which the ALJ accepted as true and which were supported by the record
as a whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds
that the vocational expert's opinion constitutes substantial evidence supporting the ALJ's
conclusion that Plaintiff's impairments did not preclude her from performing work as a
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preparation clerk, an assembly worker, and an inspector/checker during the time period in
question. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational
expert based on properly phrased hypothetical question constitutes substantial evidence).
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
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 8th day of December, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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