Devine v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable Erin L. Setser on November 18, 2011. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
SHARON R. DEVINE
CIVIL NO. 10-3017
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Sharon Devine, 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) 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).
The application for DIB presently before this Court was protectively filed on April 25,
2002, alleging an inability to work since October 23, 2001, due to degenerative disc disease, five
herniated discs, chronic pain and depression. (Tr. 36, 120-123). For DIB purposes, Plaintiff
maintained insured status through December 31, 2007.1 (Tr. 583). An administrative hearing
The Court notes that a Lead/Protective Filing Worksheet and a Field Office note dated May 7, 2002, indicate
Plaintiff’s date last insured is December 31, 2006. (Tr. 120, 150-153).
was held on May 30, 2003. (Tr. 436-459). Plaintiff was present and represented by counsel.
In a written decision dated October 31, 2003,the ALJ determined that Plaintiff retained
the residual functional capacity (RFC) to perform medium work. (Tr. 32-44). The Appeals
Council vacated this decision on March 31, 2004, and remanded the case back to the ALJ for
additional development and a new decision. (Tr. 87-90). A supplemental hearing was held on
September 21, 2004. (Tr. 460-500).
In a written decision dated November 16, 2004, the ALJ determined that Plaintiff retained
the RFC to perform sedentary work. (Tr. 47-58). On July 26, 2005, the Appeals Council vacated
this decision and remanded the case for further development and re-evaluation of the Plaintiff’s
impairments. (Tr. 104-106). A supplemental hearing was held on March 16, 2006. (Tr. 501540).
In a written decision dated December13, 2006, the ALJ found that Plaintiff retained the
RFC to perform sedentary work with limitations. (Tr. 12-21) The Appeals Council declined
review of the ALJ’s decision on July 2, 2007. (Tr. 3-5). Plaintiff appealed this decision in
federal district court.
In a decision dated August 13, 2008, this Court remanded Plaintiff's case back to the
Commissioner to further consider Plaintiff’s subjective complaints of pain; to more fully explain
the reasons for disregarding Dr. Knox’s opinion; to ensure that the jobs identified were consistent
with the RFC; and to ensure that the directives of the Appeals Council were followed. (Tr. 557567). The Appeals Council vacated the ALJ's decision and remanded Plaintiff's case back to the
ALJ on September 2, 2008. (Tr. 570).
By written decision dated December 18, 2009, the ALJ found that Plaintiff has an
impairment or combination of impairments that are severe. (Tr. 547). Specifically, the ALJ
found Plaintiff had the following severe impairments: degenerative disc disease, a mood disorder
with depression, and anxiety. However, after reviewing all of the evidence presented, he
determined that Plaintiff’s impairments do 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. 547). The ALJ found Plaintiff retained the RFC to:
perform sedentary work as defined in 20 CFR 404.1567(a) in that the claimant
is able to occasionally lift and carry 10 pounds and frequently lift and carry less.
She is able to sit for six hours and stand and walk for two hours during and (sic)
eight-hour workday. She can frequently handle, finger, and feel and can
occasionally push and pull, operate hand and foot controls, and reach overhead.
She can occasionally climb, balance, crawl, stoop, kneel and crouch and can
occasionally tolerate hazards, heights, chemicals, noise, humidity, pulmonary
irritants, temperature extremes and vibrations. She has moderate restrictions in
maintaining social functioning and in concentration, persistence and pace. She
is moderately limited in the ability to make judgments on simple work-related
decisions; appropriately interact with the public, supervisors and co-workers; and
appropriately respond to usual work situations and routine work changes.
Moderately limited means there is more than a slight limitation but she can
perform in a satisfactory manner. She can do work in which interpersonal contact
is incidental to the work performed and 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. 548-549). With the help of vocational expert testimony, the ALJ found Plaintiff could
perform other work as machine tender and an assembler. (Tr. 556).
Plaintiff appealed the decision of the ALJ to the Appeals Council. On January 11, 2010,
Plaintiff filed written exceptions to the Appeals Council but later withdrew these exceptions.
(Doc. 7, Attachment 1; Doc. 15, Attachment 1). When the Appeals Council declined review, the
ALJ’s decision became the final action of the Commissioner. Plaintiff now seeks judicial review
of that decision. (Doc. 1). Both parties filed appeal briefs and this case is before the undersigned
pursuant to the consent of the parties. (Docs. 6, 23, 24).
At the time of the most recent supplemental hearing held before the ALJ on July 14,
2009, Plaintiff was forty-one years of age and obtained a high school education and some post
high school certification. (Tr. 640, 644). The record reflects Plaintiff’s past relevant work
consists of work as a receptionist, a data entry clerk and an office clerk.
The record reflects that prior to the relevant time period, Plaintiff sought treatment for
various impairments including sinusitis, back and neck pain, kidney stones, and abdominal pain.
(Tr. 249, 252, 254-255, 260, 271, 277, 284, 294-296, 302-307, 392, 401, 422-431).
The pertinent medical evidence during the relevant time period of October 23, 2001,
through December 31, 2007, reflects the following. On October 2, 2001, Plaintiff entered the
North Arkansas Regional Medical Center emergency room complaining of chronic back pain that
had worsened, nausea and vomiting. (Tr. 262-264, 391). Plaintiff was treated and instructed to
follow up with Dr. Reese.
On October 2, 2001, Plaintiff came in for a follow-up following his emergency room
visit. (Tr. 251). Dr. Ronald R. Reese noted Plaintiff had a history of a herniated nucleus
pulposus of the cervical spine. Plaintiff reported that her left arm and shoulder would go numb
and that her hand was cold. Dr. Reese noted Plaintiff would see Dr. Knox on October 25, 2001.
On October 26, 2001, Plaintiff underwent cervical spine x-rays that revealed no
demonstration of pathologic motion on flexion and extension to suggest ligamentous instability
of the cervical vertebral column. (Tr. 247). A second imaging revealed “mild narrowing of C5-6
intervertbral discs. No fracture, dislocation or destructive process.” (Tr. 248).
On October 26, 2001, Plaintiff underwent a MRI of the cervical spine that revealed a
bulging of the C6-7 greater than the C5-6 disc space which did not appear to be causing
significant spinal stenosis or neuroforaminal encroachment. (Tr. 301).
In a letter dated October 31, 2001, Dr. D. Luke Knox wrote that Plaintiff was seen on
October 25, 2001, with complaints of marked worsening of pain in her neck and left arm over
the past four to six weeks. (Tr. 300). Plaintiff reported she had been unable to work over the
last four weeks and had basically taken off the last two weeks. Dr. Knox noted Plaintiff was
ready to consider other options. Dr. Knox stated the following:
Neurologically, I could pick up no evidence of motor or sensory deficit with the
exception of a weak triceps on the left and diminished sensation over the C6
dermatome. Reflexes were, for the most part, symmetric with the exception of
a slightly diminished brachioradialis on the right. Spurling maneuver was
We reviewed her old x-rays which included the MRI scan from a couple of years
ago of her cervical spine. Quite frankly, I am quite impressed with the way those
discs looked at that time. I am suspicious that something may have changed, and
I asked that she have her MRI scan done over the next day or two.
(Tr. 300). Dr. Knox noted he had prescribed Plaintiff Hydrocodone.
In a letter dated December 19, 2001, Dr. Knox noted Plaintiff was seen on December 13,
2001, with continued complaints of aches and pains with her neck, arm, back, and leg. (Tr. 299).
Dr. Knox noted that while Plaintiff reported some improvement, she did not feel that she could
return to her job. Dr. Knox noted he gave Plaintiff an okay to return to physical therapy and to
remain off of work until she felt able to sustain a desk job for a full eight hours. Dr. Knox noted
he had referred Plaintiff to a pain clinic for further evaluation, and that Plaintiff would see Dr.
Runnels for conservative spine care.
In a letter dated December 19, 2001, Dr. Knox wrote a letter stating that Plaintiff had
been under his care for the last several years for complaints related to her back, leg, neck, and
arm pain. (Tr. 298). Dr. Knox noted Plaintiff was found to have significant cervical
spondylosis, a central disc herniation at L4-5, and lumbar spondylosis. Dr. Knox opined Plaintiff
was unable to sit for more than one hour at a time. Dr. Knox noted Plaintiff was to follow-up
with Dr. Runnels in two months and hoped to be able to return to employment. Dr. Knox noted
that when Plaintiff decided to consider surgical options, she was to return to his office.
On December 31, 2001, Plaintiff complained of a sinus infection. (Tr. 257). Dr. Ronald
R. Reese prescribed medication. Plaintiff was treated for a sinus infection on January 15, 2002,
and January 21, 2002 as well. (Tr. 257). Plaintiff was referred to Dr. McGarrah, an
otolaryngologist, for evaluation of her sinuses.
On January 9, 2002, Plaintiff was seen by Dr. R. David Cannon upon referral by Dr.
Knox. (Tr. 312-314). Plaintiff complained of neck and back pain with arm and leg pain.
Plaintiff reported she had been off of work because she was unable to sit for any length of time.
Plaintiff reported her pain was made worse by riding in a car, sitting, standing or bending
forward. After examining Plaintiff and her radiographic studies, Dr. Cannon diagnosed Plaintiff
with a disc bulge of the cervical and lumbar spine, degenerative disc disease - lumbar,
cervicalgia, lower back pain, sciatica, left C8 cervical radiculopathy and myofascial pain. Dr.
Cannon prescribed a TENS unit and Ultram, and set Plaintiff up for an epidural steroid injection.
Plaintiff underwent these injections in March and April of 2002. (Tr. 308-311).
On February 28, 2002, Plaintiff underwent a CT scan of the sinuses that revealed
postoperative bilateral antral windows with no evidence of acute sinusitis or other abnormality.
(Tr. 261, 390).
In a letter dated April 8, 2002, Dr. Vincent B. Runnels recited Plaintiff’s medical history
and noted Plaintiff’s complaints of low back pain, bilateral hip pain which alternated to both
thighs, and that her feet fell asleep if she sat too long. (Tr. 297, 375). After examining Plaintiff,
Dr. Runnels prescribed Bextra and Ultram, back exercises, posture correction, and massage and
traction for her neck. Dr. Runnels stated Plaintiff had “very minimal disease” and he thought
she should be able to return to work in a week or so. Dr. Runnels also recommended Plaintiff
get on a diet.
On June 4, 2002, Plaintiff complained of a fever and back pain between the shoulder
blades. (Tr. 256).
On June 9, 2002, Plaintiff underwent a Functional Capacity Evaluation performed at
Healthsouth. (Tr. 325-332). Plaintiff’s perceived abilities included sitting for sixty minutes,
standing for sixty minutes, walking for sixty minutes, driving for one hundred twenty minutes,
and lifting thirty-five pounds. Plaintiff’s gait, posture, flexibility and range of motion were all
noted as within normal limits. Based upon her performance, the examiner opined Plaintiff could
work within the medium category of work with frequent lifting for an eight hour day.
On July 23, 2002, Dr. Jerry L. Thomas, a non-examining medical consultant, completed
a RFC assessment stating that Plaintiff could occasionally lift or carry fifty pounds, frequently
lift or carry twenty-five pounds; could stand and/or walk for a total of about six hours in an eighthour workday; could sit for a total of about six hours in an eight-hour workday; and could push
or pull unlimited, other than as shown for lift and/or carry. (Tr. 333-340). Dr. Thomas opined
that postural, manipulative, visual, communicative or environmental limitations were not
evident. On October 7, 2007, after reviewing the record, Dr. Robert Beard affirmed Dr.
Thomas’s July 23, 2002 assessment. (Tr. 340-342)
On September 12, 2002, Plaintiff underwent a MRI of the cervical spine that revealed a
small right-sided HNP at C5-C6. (Tr. 389).
On October 30, 2002, Plaintiff underwent a right carpal tunnel release after complaining
of right forearm, wrist and hand numbness. (Tr. 382-386).
On December 20, 2002, Plaintiff entered the North Arkansas Regional Medical Center
emergency room reporting that she had been playing with her eight month old puppy that had
jumped up and scratched her in the left eye. (Tr. 387). Plaintiff was diagnosed with a
corneal/conjunctival abrasion. Plaintiff was prescribed medication and instructed to follow-up
with an ophthalmologist.
In a letter dated April 17, 2003, Dr. Ryan Kaplan stated Plaintiff had been referred to him
for neck and lower back pain. (Tr. 347). Plaintiff reported that moving around made her pain
worse and that lying down made her pain better. Dr. Kaplan stated that he performed an
electrodiagnostic examination of Plaintiff’s lower extremities which was normal. Upon
examination, Dr. Kaplan stated that he thought he found some mild weakness in Plaintiff’s left
deltoid muscle. Dr. Kaplan stated that Plaintiff’s EMG study was unremarkable and there was
no evidence of radiculopathy or plexopathy. Dr. Kaplan stated Plaintiff’s normal EMG and fairly
unremarkable lumbosacral MRI made him disinclined to recommend surgery. Dr. Kaplan opined
that physical therapy would be the best modality of intervention. Dr. Kaplan noted that Plaintiff
had been undergoing physical therapy and that Plaintiff reported it had made her pain worse.
Plaintiff was given a prescription for Neurontin. Due to some weakness in Plaintiff’s left upper
extremity, Dr. Kaplan stated he would do a left upper extremity EMG when Plaintiff returned
to the office.
In a letter dated June 9, 2003, Dr. Kaplan, stated he was following Plaintiff for numerous
neurological symptoms. (Tr. 345). Dr. Kaplan stated that since Plaintiff’s last visit with him,
she reported that the Neurontin had helped her pain about seventy percent. Dr. Kaplan stated the
Her neck pain has also resolved ever since she quit her job. Today I performed
an electrodiagnositc examination of her left upper extremity, in the hopes of
trying to find a neurogenic explanation for possible left deltoid weakness. This
study came back completely normal. There was no evidence of an upper
extremity radiculopathy, plexopathy, or mononeuropathy.
At this time, I really do not have a neurologic explanation for her complaints. As
the Neurontin is helping, I will plan on continuing it for two months’ time. I will
then see her back and will start titrating this down.
On July 17, 2003, Plaintiff underwent a consultative psychological evaluation performed
by Dr. Stephen R. Harris. (Tr. 350-355). Dr. Harris noted Plaintiff was a clean neatly dressed
person with an erect posture and a regular gait. Plaintiff reported that she had pain “most of the
time” and that she was depressed and felt hopeless. Plaintiff reported she was first treated for
depression after she had her twin boys. Plaintiff reported she started having back pain in 1985
after being involved in a motor vehicle accident that resulted in the death of her sister. Plaintiff
reported she had never had any psychological or psychiatric treatment. Dr. Harris noted Plaintiff
appeared to hold back quite a bit. After evaluating Plaintiff, Dr. Harris stated Plaintiff appeared
to be an individual in the average range of intellect who had physical difficulties that caused her
pain and problems with daily activities. Dr. Harris indicated that Plaintiff appeared to have a
rather significant depression possibly of a long standing nature. Dr. Harris opined that Plaintiff
would benefit from psychological and/or psychiatric treatment concerning her depression and
working through some of the difficulties with the loss of her sister.
On July 17th, Dr. Harris also completed a medical assessment of ability to do workrelated activities (mental) form. (Tr. 356-357). With regard to occupational adjustments, Dr.
Harris opined Plaintiff had a good ability to follow work rules, use judgement, function
independently, and maintain attention and concentration; and a fair ability to relate to coworkers, deal with the public, interact with supervisors, and deal with work stresses. With regard
to making performance adjustments, Dr. Harris opined Plaintiff had an unlimited/very good
ability to understand, remember and carry out simple job instructions; and a good ability to
understand, remember and carry out complex job instructions, and understand, remember and
carry out detailed, but not complex, job instructions. With regard to personal-social adjustments,
Dr. Harris opined Plaintiff had an unlimited/very good ability to maintain personal appearance;
and between a good and fair ability to behave in an emotionally stable manner, relate predictably
in social situations, and demonstrate reliability.
On December 2, 2004, Plaintiff was treated for an acute onset of left jaw/TMJ pain. (Tr.
326-363). Plaintiff was treated and Lorcet was prescribed for pain on December 9, 2004, and
December 15, 2004. Treatment notes indicated Plaintiff was to follow-up with her general
practitioner for splint therapy.
On December 7, 2004, Plaintiff underwent a neuropsychological evaluation performed
on Dr. Vann Arthur Smith. (Tr. 358-361). After evaluating Plaintiff, Dr. Smith opined that
Plaintiff’s clinical history, mental status examination and neuropsychodiagnostic screening test
profile data reflected a pattern of abnormal findings consistent with the presence of bilateral,
diffuse organic brain dysfunction of mild to moderate severity and static to slowly progressive
velocity. Dr. Smith opined that the findings were compatible with Plaintiff’s clinical history of
chronic pain and a thyroid disorder. Dr. Smith diagnosed Plaintiff with Axis 1: organic brain
dysfunction, secondary to Axis III conditions; Axis III: thyroid disorder, by history, TBI by
history, DDD, and chronic pain syndrome. Dr. Smith opined Plaintiff’s GAF score to be 65-70
with her highest GAF being 80. Dr. Smith opined that Plaintiff was disabled at that time.
On October 17, 2005, Plaintiff underwent a consultative psychological evaluation
performed by Dr. Harris. (Tr. 364-371). Dr. Harris noted Plaintiff was a clean neatly dressed
person with an erect posture and a regular gait. Plaintiff reported she was applying for disability
because she was depressed and had back pain “all of the time.” Plaintiff reported that she did
not feel like leaving her house and that she did not feel like getting out of bed in the morning.
Plaintiff reported that her family just received health insurance in March so that she could now
get some treatment. Dr. Harris noted Plaintiff exhibited a “good bit of repositioning” during the
evaluation. Plaintiff reported her medications consisted of Synthroid, Effexor and Neurontin.
After examining Plaintiff, Dr. Harris opined Plaintiff was of average intellect who showed very
definite depressive characteristics that seemed to increase some physical difficulties. Dr. Harris
opined that Plaintiff would have difficulty in many interpersonal relationships.
On October 17th, Dr. Harris also completed a medical assessment of ability to do workrelated activities (mental) form. (Tr. 372-374). Dr. Harris opined that Plaintiff would have slight
limitations in four areas of functioning. Dr. Harris noted Plaintiff was moderately limited in her
ability: to make judgements on simple work-related decisions; to interact appropriately with the
public; to interact appropriately with supervisor(s); to interact appropriately with co-workers; to
respond appropriately to work pressures in a usual work setting; and to respond appropriately to
changes in a routine work setting.
On March 13, 2006, Dr. Vann Arthur Smith completed a mental RFC questionnaire
opining Plaintiff’s current global assessment of functioning score was 65, and her highest in the
past year was 80. (Tr. 376-380). Dr. Smith opined Plaintiff’s prognosis was fair. Dr. Smith
noted Plaintiff’s signs and symptoms were as follows: mood disturbance; difficulty thinking or
concentrating, psychological or behavioral abnormalities associated with a dysfunction of the
brain with a specific organic factor judged to be etiologically related to the abnormal mental state
and loss of previously acquired functional abilities; easy distractibility; memory impairment short, intermediate or long term; and sleep disturbance. Dr. Smith opined Plaintiff was seriously
limited, but not precluded or unable to meet competitive standards in four of twenty-five areas
of functioning; and unable to meet competitive standards in eight of the twenty-five areas of
functioning. Dr. Smith further opined Plaintiff would miss more than four days per month due
to her impairments.
On May 10, 2006, Plaintiff underwent an orthopaedic examination performed by Dr. Ted
Honghiran. (Tr. 432-435). Dr. Honghiran noted that Plaintiff complained of neck and back pain
that had been treated conservatively with medications and physical therapy. Plaintiff reported
that her pain had continued to worsen since she last saw Dr. Knox in 2001, but she had not
returned to Dr. Knox because she did not have insurance. Plaintiff reported that even though she
now had insurance she did not think she needed to return to Dr. Knox because she did not want
to have surgery. Plaintiff reported she underwent steroid injections and experienced no
improvement in her pain. Plaintiff had also tried a TENS unit to control her pain. Plaintiff
reported her medications consisted of Aleve and Ibuprofen. Plaintiff reported she stayed at home
and took care of her two children that were nine years of age. Upon examination, Dr. Honghiran
noted Plaintiff was able to walk normally; and to get up on her toes and heels without problems.
Plaintiff’s lumbar spine range of motion was complete with ninety degrees of flexion, twentyfive degrees of extension, with lateral flexion to twenty-five degrees with no pain. Dr.
Honghiran noted no acute muscle spasms, and that Plaintiff’s straight leg rasing was negative
on both sides. Plaintiff also had normal reflex and sensation. Dr. Honghiran noted an
examination of Plaintiff’s cervical spine revealed fifty degrees of flexion, sixty degrees of
extension, and lateral flexion to forty-five degrees on both sides with normal reflex and sensation
and no pain or muscle spasms. Dr. Honghiran also reviewed MRIs of Plaintiff’s lumbar and
cervical spine. Dr. Honghiran’s impression stated:
It is my impression that Ms. Devine has a history of having chronic neck and
back pain, with evidence of degenerative disc disease at C6-7 and also a bulging
disc at L4-5 of the lumbar spine, with minimal degenerative disc disease
condition. Her condition is quite benign, even though she feels it is getting worse
with increasing pain.
(Tr. 433). Dr. Honghiran opined Plaintiff should be able to do computer work that did not
require heavy lifting of more than thirty pounds, long-standing, or walking. Dr. Honghiran also
completed a medical assessment opining that Plaintiff could frequently lift and/or carry twenty
pounds, occasionally up to one hundred pounds; sit for six hours in an eight-hour day; stand/walk
two hours in an eight-hour day; and occasionally perform postural activities. (Tr. 435).
After the relevant time period, Plaintiff underwent the following consultative evaluations.
On September 21, 2009, Plaintiff underwent a consultative general physical examination
performed by Dr. Shannon Brownfield.2 (Tr. 625-629). Dr. Brownfield noted Plaintiff’s range
of motion in her extremities was normal; Plaintiff’s cervical spine flexion was zero to fifty
degrees (0 to 60 is normal), extension was zero to fifty degrees, and rotation was zero to sixty
degrees (zero to eighty is normal); and Plaintiff lumbar flexion was within normal limits. Dr.
Brownfield noted no muscle spasms and negative straight leg raising tests. Plaintiff did not have
muscle weakness or atrophy. Plaintiff’s gait and coordination was noted as normal. Upon a
limb function evaluation, Dr. Brownfield noted Plaintiff was able to hold a pen and write; to
touch fingertips to palm; to grip normally; to oppose thumb to fingers; to pick up a coin; to stand
and walk without assistive devices; to walk on heel and toes; and to squat and arise from a
squatting position. Dr. Brownfield diagnosed Plaintiff with clinical depression that was
untreated and questioned if Plaintiff had post-traumatic stress disorder; and chronic neck and low
back pain with a history of degenerative disc disease with radiation symptoms in the left
arm/hand. Dr. Brownfield opined Plaintiff was moderately to severely limited with prolong
positions, walking, and lifting over twenty pounds. Dr. Brownfield noted Plaintiff also had
moderate to severe limitations secondary to her depression.
On September 30, 2009, Plaintiff underwent a third mental diagnostic evaluation
performed by Dr. Harris. (Tr. 630-635). At the time of the evaluation, Plaintiff was taking
Synthroid. Dr. Harris noted that other than being treated by her family physician, Plaintiff had
had no treatment for emotional or mental difficulties. Dr. Harris noted that during this
evaluation, Plaintiff talked about the accident that occurred in 1985, and that while she had said
The Court notes that the ALJ listed the date of this evaluation as 2002. (Tr. 552). The Court finds this to be a
her sister had been driving at the time, it was actually Plaintiff that was driving prior to the
accident. Dr. Harris noted that Plaintiff drove herself to the evaluation, that Plaintiff was
casually dressed, and that Plaintiff had an erect posture and a regular gait. Dr. Harris noted
Plaintiff showed a little bit of repositioning throughout the evaluation, and that Plaintiff became
tearful when she was recounting the accident and revealing her feelings about the past situation.
Plaintiff reported that her interests were her boys, and that she enjoyed watching them in sports.
Plaintiff reported that she was tired most of the time and that she and her husband did not go out
often except to watch the boys. Dr. Harris diagnosed Plaintiff with a depressive disorder, an
anxiety disorder and a pain disorder. Dr. Harris noted that Plaintiff could take care of her
personal hygiene, drive, and shop for the household. Plaintiff reported that she did not clean a
lot. With regard to communicating, Dr. Harris noted that Plaintiff appeared to be somewhat
withdrawn and that she had little social interaction. Dr. Harris noted that Plaintiff seemed to
focus her emotional difficulties upon her physical complaints, and that Plaintiff may have
difficulties in coping with work-like tasks if she was stressed. Dr. Harris opined that if Plaintiff
was able to keep a relatively level stress level, she would be able to work on tasks to completion.
Dr. Harris opined that Plaintiff needed further counseling and work to help her cope with stress
and anxiety which was more than likely due to guilty feelings.
On October 2, 2009, Dr. Harris also completed a medical source statement of ability to
do work-related activities (mental) opining that Plaintiff was mildly limited in her ability to
understand and remember simple instructions; to carry out simple instructions; to make
judgments on simple work-related decisions; to understand and remember complex instructions;
to carry out complex instructions; and to make judgments on complex work-related decisions.
(Tr. 636-637). Dr. Harris opined Plaintiff was between mild and moderately limited in her
ability to interact appropriately with the public; to interact appropriately with supervisors; to
interact appropriately with co-workers; and to respond appropriately to usual work situations and
to changes in a routine work setting. Dr. Harris indicated that Plaintiff had had these limitations
since approximately 2003.
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 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)(c). A Plaintiff must show that her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him 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. 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); 20 C.F.R. § 404.1520.
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled
prior to December 31, 2007, her date last insured. Defendant argues substantial evidence
supports the ALJ’s determination.
In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on December 31, 2007. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
Plaintiff was disabled during the relevant time period of October 23, 2001, her alleged onset date
of disability, through December 31, 2007, the last date she was in insured status under Title II
of the Act.
In order for Plaintiff to qualify for DIB she must prove that, on or before the expiration
of her insured status she was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). The medical
evidence of Plaintiff's condition subsequent to the expiration of Plaintiff's insured status is
relevant only to the extent it helps establish Plaintiff's condition before the expiration. Id. at
Subjective Complaints and Credibility Analysis:
We first 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 evaluated
Plaintiff’s subjective complaints. Although Plaintiff contends that her impairments were
disabling prior to the expiration of her insured status, the evidence of record does not support this
With regard to Plaintiff’s back and neck impairments, the record reflects that Plaintiff
sporadically sought treatment for these impairments during the relevant time period. In October
of 2001, Dr. Reese noted Plaintiff had a history of a herniated nucleus pulposus of the cervical
spine and referred Plaintiff to Dr. Knox. In December of 2001, Dr. Knox noted that Plaintiff had
significant cervical spondylosis, a central disc herniation at L4-5, and lumbar spondylosis, and
opined that Plaintiff would be unable to sit for more than an hour at a time. Dr. Knox then
referred Plaintiff to Dr. Runnels for further care. In April of 2002, after examining Plaintiff and
reviewing her medical history, Dr. Runnels prescribed medication, back exercises, posture
correction, and massage and traction of the neck. Dr. Runnels also said Plaintiff had “very
minimal disease” and opined Plaintiff could return to work in a “week or so.”
In June of 2002, Plaintiff underwent a Functional Capacity Evaluation and the therapist
opined Plaintiff could perform medium level work. The record revealed that Plaintiff saw Dr.
Kaplan in April of 2003 with complaints of neck and back pain, and Dr. Kaplan prescribed
Neurontin. At Plaintiff’s follow up visit with Dr. Kaplan in June of 2003, Plaintiff reported that
the Neurontin had helped her pain “about seventy percent.” Dr. Kaplan’s notes also showed that
Plaintiff underwent EMG studies of her lower extremities and upper left extremity that were
normal. Dr. Kaplan indicated that he had no neurologic explanation for Plaintiff’s complaints
and that, because the Neurontin was helping, he would continue Plaintiff on the medication and
see her back in two months. There is no record that Plaintiff returned to Dr. Kaplan and in fact
Plaintiff was not seen by a physician for her complaints of back and neck pain again until a
consultative evaluation in May of 2006 performed by Dr. Honghiran. After examining Plaintiff,
Dr. Honghiran opined that Plaintiff’s condition was “quite benign” and that Plaintiff could
perform light work with some limitations.
Plaintiff did not seek treatment for her back pain again until a consultative examination
in September of 2009, almost two years after her insured status had expired. At that time, Dr.
Brownfield noted that Plaintiff’s range of motion in her extremities was normal; Plaintiff’s
cervical spine flexion was zero to fifty degrees (0 to 60 is normal), extension was zero to fifty
degrees, and rotation was zero to sixty degrees (zero to eighty is normal); and Plaintiff’s lumbar
flexion was within normal limits. Dr. Brownfield noted no muscle spasms and negative straight
leg raising tests. Plaintiff did not have muscle weakness or atrophy.
Plaintiff’s gait and
coordination was noted as normal. Upon a limb function evaluation, Dr. Brownfield noted
Plaintiff was able to hold a pen and write; to touch fingertips to palm; to grip normally; to oppose
thumb to fingers; to pick up a coin; to stand and walk without assistive devices; to walk on heel
and toes; and to squat and arise from a squatting position.
While Plaintiff may indeed experience some degree of pain due to her back and neck
impairment, the Court finds, based on the evidence recited above, that there is substantial
evidence supporting the ALJ's finding that Plaintiff’s back impairment was not disabling during
the relevant time period. 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).
While Plaintiff alleged an inability to seek treatment due to a lack of finances, the record
is void of any indication that Plaintiff had been denied treatment due to the lack of funds.
Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that lack of evidence that
plaintiff sought low-cost medical treatment from her doctor, clinics, or hospitals does not support
plaintiff’s contention of financial hardship). The record also reveals that in October of 2005,
Plaintiff reported to Dr. Harris that her family obtained access to health insurance in March of
2005, and that she could now obtain treatment. However, the record fails to show that Plaintiff
sought treatment for her disabling pain.
As for Plaintiff’s alleged depression and anxiety, there is no medical evidence of record
revealing that Plaintiff sought on-going and consistent treatment for her alleged depression and
anxiety during the relevant time period. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001)
(holding that lack of evidence of ongoing counseling or psychiatric treatment for depression
weighs against plaintiff’s claim of disability). In addressing Plaintiff’s mental impairments, the
ALJ noted that Plaintiff was mildly restricted with activities of daily living. The ALJ pointed
out that the record revealed Plaintiff was able to take care of her daily needs, drive, shop for
groceries, and care for her twin sons. With regard to social functioning, the ALJ found Plaintiff
had moderate limitations. In making this finding the ALJ pointed out that Plaintiff had been
married for twenty years and that Plaintiff was able to go out and watch her sons play sports.
However, the ALJ also noted that Dr. Harris found Plaintiff was somewhat withdrawn and had
little interaction. As for Plaintiff’s concentration, persistence, and pace, the ALJ opined that
Plaintiff had moderate difficulties. The ALJ based this finding on Dr. Harris’s observation that
Plaintiff seemed to focus her emotional difficulties upon her physical complaints and that
Plaintiff could have some difficulties with work-like tasks if she felt stressed. The ALJ pointed
out that Dr. Harris also opined that Plaintiff’s stress level could cause Plaintiff to have difficulty
in attention, concentration, persistence and pace.
The ALJ found no evidence of
decompensation. After reviewing the evidence of record, the Court finds substantial evidence
to support the ALJ’s finding that during the relevant time period, Plaintiff did not have a
disabling mental impairment.
Plaintiff's subjective complaints are also inconsistent with evidence regarding her daily
activities. In a Supplemental Outline dated May 9, 2002, Plaintiff reported that she was able to
take care of her personal needs; to perform most household chores which included some yard
work and using a riding lawn mower; to shop and do errands. (Tr. 163-166). It is also
noteworthy that Plaintiff testified at a September 2004 administrative hearing that she was the
sole care-giver to her six year old twin sons during the workweek because her husband worked
out of town. On September 30, 2009, well after Plaintiff’s insured status had expired, Plaintiff
reported she was able to take care of her personal hygiene, drive, shop for the household, and
clean the house but not often. 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)
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she was unable to engage in any gainful activity during the relevant time
Accordingly, the Court concludes that substantial evidence supports the ALJ’s
conclusion that Plaintiff’s subjective complaints were not totally credible.
We next turn to the ALJ’s assessment of Plaintiff’s RFC. 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 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 finding Plaintiff able to perform sedentary work with limitations, the ALJ considered
Plaintiff’s subjective complaints, the medical records of her treating and examining physicians,
and the evaluations of the non-examining medical examiners.
With regard to the opinions of Plaintiff’s treating and examining physicians, the ALJ
stated that he gave these assessments significant weight. However, the ALJ found the opinion
of Dr. Knox in December of 2001 persuasive only to the extent that it was consistent with the
RFC findings. In addressing Dr. Knox’s opinion that Plaintiff could sit less than an hour at a
time, the ALJ noted that this finding was inconsistent with Dr. Knox’s prior records that indicated
Plaintiff’s back was “ever-so-slightly better.” Davidson v. Astrue, 501 F.3d 987, 990-91 (8th Cir.
2007) (finding ALJ correctly discounted a physician’s assessment report when his treatment notes
contradicted the report). In determining to not give Dr. Knox’s opinion more weight, the ALJ
also pointed out that Dr. Knox’s opinion was inconsistent with the April of 2002 opinion of Dr.
Runnels, a treating neurologist, who found that Plaintiff “ had a very minimal disease” and should
be able to return to work “in a week or so.” The ALJ also pointed out that Dr. Runnels found that
Plaintiff’s EMG tests in her arms and legs were normal, that Plaintiff’s lumbar MRI was fairly
unremarkable, and that Plaintiff’s cervical MRI did not indicate neural impingement. In
discussing the medical opinions, the ALJ also noted that Dr. Honghiran, a consultative examining
orthopaedic physician, opined in May of 2006 that Plaintiff’s condition was “quite benign” even
though Plaintiff felt it was getting worse. The ALJ also noted that well after Plaintiff’s insured
status had expired, Dr. Brownfield, a consultative examiner, opined that Plaintiff would have
moderate to severe limitation with prolonged positions, walking and lifting over twenty pounds.
With regard to Plaintiff’s mental limitations, in deciding not to give controlling weight
to Dr. Smith’s opinion that Plaintiff was seriously limited, but not precluded or unable to meet
competitive standards in twelve of twenty-five areas of functioning, and that Plaintiff was
therefore disabled, the ALJ noted that Dr. Smith’s findings were not consistent with the record
as a whole. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)(the 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). The ALJ pointed out that the restrictions identified were
extrapolated exclusively from a self-report by the Plaintiff and a one-time examination. The ALJ
found that there was no indication that Plaintiff’s medical history or longitudinal functioning was
taken into consideration when Dr. Smith completed his assessment of Plaintiff’s abilities.
Accordingly, the ALJ afforded Dr. Smith’s opinion little weight. The Court finds that substantial
evidence of record supports this determination.
The ALJ also considered the opinion of Dr. Harris who performed three separate
evaluations of Plaintiff. The ALJ pointed out that Dr. Harris found that Plaintiff functioned
within the average range of intellect and that she experienced significant symptoms of depression.
The ALJ also noted that Dr. Harris opined that Plaintiff maintained a GAF score of 57 which has
been associated with moderate impairment in occupational functioning. Martise v. Astrue, 641
F.3d 909, 919 (8th Cir. 2011)(according to the Diagnostic and Statistical Manual of Mental
Disorders (DSM–IV), a GAF of 51 to 60 indicates moderate symptoms)(citations omitted).
Based on our above discussion of the medical evidence and Plaintiff's activities throughout
the relevant time period, the Court finds substantial evidence of record to support the ALJ's RFC
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 testimony constitutes substantial evidence supporting the ALJ's conclusion that
prior to the expiration of her insured status, Plaintiff's impairments did not preclude her from
performing work as a machine tender and an assembler. Pickney v. Chater, 96 F.3d 294, 296 (8th
Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
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
DATED this 18th day of November 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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