Eakins v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 22, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

MELINDA C. EAKINS

PLAINTIFF

v.

CIVIL NO. 10-3038

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Melinda C. Eakins, 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 August 29, 2006,

alleging an inability to work since August 15, 2006, due to an anxiety disorder, a personality
disorder, memory problems, difficulty being in crowds, stress, and pain in the upper back and
shoulder blades. (Tr. 92-94, 98-100). For DIB purposes, Plaintiff maintained insured status

AO72A
(Rev. 8/82)

through September 30, 2007.1 (Tr. 47). An administrative hearing was held on June 5, 2008,
at which Plaintiff appeared with counsel and testified. (Tr. 6-39).
By written decision dated September 24, 2008, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
49). Specifically, the ALJ found Plaintiff had the following severe impairments: an affective
disorder, a personality disorder, and an anxiety (conduct) disorder. However, after reviewing all
of the evidence presented, she 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. (Tr. 49). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform work at all exertion levels. See Medical-Vocational Guidelines, 20 CFR,
Part 404, Subpart P, Appendix 2. However, based upon the impairments
identified above, she must work where instructions are simple and non-complex;
interpersonal contact with co-workers and the public is incidental to the work
performed; the complexity of tasks is learned and performed by rote; the work is
routine and repetitive; there are few variables; little judgment is required; and the
supervision required is simple, direct, and concrete.
(Tr. 51). With the help of a vocational expert, the ALJ determined Plaintiff could perform her
past relevant work as a power washer. (Tr. 54). The ALJ also determined Plaintiff could
perform other work as a small product assembler, a kitchen helper and a meat trimmer. (Tr. 55).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 17, 2010. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 10, 11).
1

The Court notes that Disability Reports also indicate Plaintiff’s date last insured is June 30, 2007, and June 30,
2008. (Tr. 137, 173).

-2-

AO72A
(Rev. 8/82)

II.

Evidence Presented:
At the administrative hearing before the ALJ on June 5, 2008, Plaintiff testified that she

was thirty-eight years of age and obtained a high school education. (Tr. 10-11). Plaintiff also
attended college but testified that she could not seem to get through speech. (Tr. 11). The record
reflects Plaintiff’s past relevant work consists of work as a power washer. (Tr. 24).
The medical records dated from 1978 through June of 2006, prior to Plaintiff’s alleged
onset date of August 15, 2006, revealed that Plaintiff sought treatment for various ailments,
some of which include the following: colds, sinusitis, sore throats, back aches, epigastric pain,
insect bites, ear infections, pain from a hood of a vehicle falling on her hand, pain and abrasions
from being kicked by a horse, injuries as a result of a fight with her sister, and an injured finger
as a result of playing basketball. (Tr. 213-235, 239-261).
The medical evidence during the relevant time period reflects the following. On October
2, 2006, the Ahrens Clinic indicated Plaintiff was prescribed Wellbutrin.2 (Tr. 236).
On November 17, 2006, Plaintiff underwent a neuropsychological evaluation performed
by Dr. Vann Arthur Smith. (Tr. 263-264, 298-301). Dr. Smith noted that Plaintiff’s medical
records had been requested. Plaintiff reported a history of multiple closed head injuries due to
a car accident, being hit in the head with a hammer, being hit in the head with a falling rock and
numerous assaults by her estranged spouse in which she was struck, pushed and choked into
unconsciousness. Plaintiff reported treatment for depression and that she experienced chronic
pain in her neck, mid back, hips, and weight bearing joints. Plaintiff also reported episodic

2

The Court notes this medical note consists of just the prescription for Wellbutrin. The most recent prescription
for Wellbutrin prior to October of 2006, was sometime in early 2003. (Tr. 240).

-3-

AO72A
(Rev. 8/82)

impulse dyscontrol, frequent “deja vu” experiences, and recurrent incomplete auditory
hallucination. Upon evaluation, Dr. Smith noted Plaintiff’s memory was mildly impaired; her
judgment and insight were grossly intact; and her affect was muted but flexible. Dr. Smith
opined Plaintiff’s native intelligence was estimated to lie within the normal range. Dr. Smith
diagnosed Plaintiff with a cognitive dysfunction, non-psychotic, secondary to a general medical
condition.
Dr. Smith also completed a mental RFC questionnaire opining that Plaintiff’s current
global assessment of functioning score was, 40-45, and her highest was 65-70. (Tr. 265-269,
302-307). 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 sixteen of twenty-five areas of functioning. Dr. Smith
further opined Plaintiff would miss work about four days per month due to her impairments. Dr.
Smith opined that Plaintiff’s clinical history of multiple closed head injuries over the course of
years was consistent with the abnormal findings seen in her neuropsychological profile. Dr.
Smith noted Plaintiff had diffuse impairments of attention, concentration and memory. Dr.
Smith opined Plaintiff was unable to sustain focus on any type of job related behavior. Dr. Smith
opined Plaintiff was disabled. (Tr. 269).
On December 18, 2006, Plaintiff underwent a consultative mental status and evaluation

-4-

AO72A
(Rev. 8/82)

of adaptive functioning examination performed by Dr. Robert L. Hudson. (Tr. 270-273). Dr.
Hudson noted Plaintiff was casually but cleanly dressed in appropriate clothing for the season.
Plaintiff drove herself to the interview. Dr. Hudson noted Plaintiff was a half hour late due to
not being able to find the examiner’s office. Plaintiff had called from a gas station across the
street to get directions. Plaintiff reported she had been working as an office cleaner for the past
three weeks and was able to perform her duties after the office workers had gone home.
Plaintiff reported she was not seeing a mental health professional but she was taking
Wellbutrin which was prescribed by someone at Ahrens Clinic. Plaintiff reported she had taken
Wellbutrin before to stop smoking, which she successfully did for a few months. Dr. Hudson
noted that Plaintiff had a long history of anxiety related to but not restricted to groups of people,
and that she had been unable to receive her associates in arts degree from the community college
because she could not complete her speech class that required her to stand up in the front of the
class. Plaintiff also reported a long history of working jobs for only days or weeks at a time.
Plaintiff reported that she started seeing a psychiatrist when she was sixteen as a result of some
behavioral problems that she was having at that time. Plaintiff also reported that she had never
seen herself as someone who might be brain damaged, but when she saw Dr. Smith he suggested
that the beatings, including choking, that she had received from her soon to be ex-husband could
have the same effect over time.
Dr. Hudson noted Plaintiff was pleasant and smiled and laughed appropriately on
occasion. Dr. Hudson opined that Plaintiff did not seem to be well in control of her emotions.
Plaintiff’s thought content was noted as generally logical and goal directed. Dr. Hudson reported
that there was no indication of a thought disorder but he noted that part of Plaintiff’s anxiety

-5-

AO72A
(Rev. 8/82)

being out among people was that she was being looked at by others. Plaintiff reported that she
also had a strong desire for things at home to be clean and straight and that she had yelled at her
sons and even thrown things from exasperation. Plaintiff reported that she enjoyed hiking with
her boys and doing other outdoor activities with them. Plaintiff also reported that she watched
some television and that she preferred comedies. Dr. Hudson noted that Plaintiff denied any
head injury, coma, concussion, high fever other than the possible damage from choking by her
husband. Dr. Hudson noted Plaintiff was able to name current events; able to immediately recall
3/3 words and 0/3 words after five minutes; able to name five large cities and three current
personages; and able to do simple arithmetic quickly and correctly. Dr. Hudson diagnosed
Plaintiff with the following: Axis I: conduct disorder, mood disorder and anxiety disorder; Axis
II: personality disorder; and Axis III: rule out brain damage from anoxia and/or other source,
headaches. Dr. Hudson opined Plaintiff’s prognosis was poor because she was not being treated
adequately, otherwise it would be fair but guarded.
Regarding Plaintiff’s adaptive functioning, Dr. Hudson had nothing to remark about
Plaintiff’s communication. Dr. Hudson noted Plaintiff got along with her parents and teachers
until her teenage years when she became anxious being around people. Plaintiff reported when
she went to college later she was more comfortable but preferred smaller classes. Plaintiff
reported she could take care of her personal needs; drive in her area but not in a big city; and
could count change but not manage a checkbook. Plaintiff reported she was not limited on
household chores and that she shopped on Sunday at the grocery store because there were fewer
people. Dr. Hudson had no remarks regarding Plaintiff’s physical development. Dr. Hudson
noted Plaintiff’s concentration was mixed and her pace and persistence were within normal

-6-

AO72A
(Rev. 8/82)

limits. With regard to Plaintiff’s cognition, Dr. Hudson stated that Plaintiff was not mentally
retarded but she might have some cognitive deficits and referred to Dr. Smith’s report that he
himself did not review.
On December 20, 2006, Dr. Kay M. Gale, a non-examining medical consultant,
completed a psychiatric review technique form indicating Plaintiff had mild restrictions of her
activities of daily living; moderate difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence or pace; and had no episodes of
decompensation. (Tr. 277-290). Dr. Gale’s notes indicated the following:
Claimant has no mental health treatment. On recent exam she is given diagnoses
of mood disorder NOS, anxiety disorder NOS, and personality disorder NOS.
She describes significant discomfort around others. Capable of at least unskilled
work in setting with limited contact with others.
(Tr. 289).
On the same date, Dr. Gale completed a mental RFC assessment stating Plaintiff had
moderate limitations in the following areas: the ability to understand and remember detailed
instructions; the ability to carry out detailed instructions; the ability to maintain attention and
concentration for extended periods; the ability to work in coordination with or proximity to
others without being distracted by them; the ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods; and the ability to interact
appropriately with the general public. (Tr. 291-294). Dr. Gale concluded that Plaintiff "is able
to perform work where interpersonal contact is incidental to work performed, e.g. assembly
work; complexity of tasks is learned and performed by rote, with few variables, uses little
judgment; supervision required is simple, direct and concrete.” On April 12, 2007, after
-7-

AO72A
(Rev. 8/82)

reviewing the record, Dr. Dan Donahue affirmed Dr. Gale’s December 20, 2006 assessment. (Tr.
297).
III.

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 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),

-8-

AO72A
(Rev. 8/82)

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, 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); 20 C .F.R. §§ 404.1520, 416.920.
IV.

Discussion:
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled.

Defendant argues substantial evidence supports the ALJ’s determination.
A.

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

-9-

AO72A
(Rev. 8/82)

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, the evidence of record does not support this conclusion.
With regard to Plaintiff’s alleged mental impairments, the record establishes that besides
the two consultative evaluations, Plaintiff has not sought treatment for her allegedly disabling
mental impairments. 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); Melton v. Apfel, 181 F.3d 939, 941 (8th Cir. 1999) (holding that
plaintiff’s failure to seek consistent medical treatment weighed against his subjective
complaints). The ALJ pointed out that while Plaintiff had been prescribed Wellbutrin by the
Ahrens Clinic in the past (Tr. 236), Plaintiff reported to Dr. Hudson during her consultative
examination that the Wellbutrin had been prescribed to help her stop smoking which had been
successful for a few months. (Tr. 270).
It is also noteworthy that medical records dated from at least 2000, from the Ahrens
Clinic, indicated that prior to the alleged onset date, Plaintiff sought treatment for various
problems, for example ear aches, spider bites, sore throats, some back aches, nasal congestion,
but did not report any on-going mental problems. The record also reflects that Plaintiff started

-10-

AO72A
(Rev. 8/82)

working as a server, for thirty hours a week, at a restaurant in April of 2008, and that she was
still working as a server in May 2008. (Tr. 183, 187).
Furthermore, while Plaintiff alleged an inability to seek mental health treatment due to
a lack of finances, the record was void of any indication that Plaintiff had attempted to seek
treatment at a free clinic or 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). After reviewing the record as a whole, the Court finds

substantial evidence to support the ALJ’s determination that Plaintiff’s mental impairments are
not disabling.
With regard to Plaintiff’s alleged back and shoulder impairments, the medical evidence
failed to show that Plaintiff sought treatment for her alleged back and shoulder problems during
the relevant time period. See Novotny v. Chater, 72 F.3d 669, 671 (8th Cir. 1995) (per curiam)
(failure to seek treatment inconsistent with allegations of pain). Furthermore, it appears Plaintiff
only took over-the-counter medication for her alleged disabling pain. See Haynes v. Shalala, 26
F.3d 812, 814 (8th Cir. 1994) ( lack of strong pain medication was inconsistent with disabling
pain). Thus, while Plaintiff may experience some pain, the Court finds substantial evidence to
support the ALJ’s determination that Plaintiff does not have a disabling back or shoulder
impairment.
Plaintiff's subjective complaints are also inconsistent with evidence regarding her daily
activities. In a Function Report dated January 27, 2007, Plaintiff reported she was able to get her

children dressed, fed, and off to school; to take care of her personal needs; to prepare simple

-11-

AO72A
(Rev. 8/82)

meals; to do household chores such as cleaning, doing laundry and washing dishes; to walk and
drive locally; to shop at the grocery store; to read and watch television daily; and that while she
did not like to be in public, she did spend time with her family and parents weekly to monthly.
(Tr. 148-155). Plaintiff also reported that she could pay bills, but that she could not manage a
checkbook. It is noteworthy that during her consultative evaluation with Dr. Hudson, Plaintiff
reported that she was not limited in doing any household chores; and that she liked to go hiking
with her boys and doing other outdoor activities with them. 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 was 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). Furthermore, Plaintiff also reported in a work
background form that she started to work as a server at a restaurant in April of 2008; and at the
administrative hearing in June of 2008, Plaintiff testified that she had worked for her minor son’s
power washing business in 2004-2005 and again in 2007. (Tr. 14, 18, 183). We note, seeking

work and working at a job while applying for benefits are activities inconsistent with the
complaints of disabling pain. See Naber v. Shalala, 22 F.3d186, 188 (8th Cir.1994) (while an
intention to return to work is laudable, it proves that the claimant is able to work and, therefore,
is inconsistent with a claim that the claimant cannot engage in any kind of substantial gainful
work)
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she

-12-

AO72A
(Rev. 8/82)

has not established that she is unable to engage in any gainful activity. See Craig v. Apfel, 212
F.3d 433, 436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort
does not mandate a finding of disability). Accordingly, the Court concludes that substantial
evidence supports the ALJ’s conclusion that Plaintiff’s subjective complaints were not totally
credible.
B.

RFC Assessment:

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 the present case, the ALJ considered the medical assessments of Plaintiff’s treating
physician, examining and non-examining agency medical consultants, Plaintiff’s subjective
complaints, and her medical records when she determined that Plaintiff could perform work at
all exertional levels with some limitations.

-13-

AO72A
(Rev. 8/82)

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 sixteen of twentyfive 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). Specifically, the
ALJ pointed out that the medical evidence of record did not document the concussions referenced
by Dr. Smith; and Dr. Smith’s report did not discuss, in a meaningful manner, Plaintiff’s past
employment activities and the cognitive level required for those activities. (Tr. 53). The ALJ also
noted that a review of Dr. Smith’s assessment and findings indicated that Dr. Smith based a large
part of his analysis on Plaintiff’s subjective report of her medical history which was otherwise
unsupported by verifiable objective medical evidence of record. Accordingly, the ALJ afforded
Dr. Smith’s opinion little weight. In further support of this decision, the ALJ noted that Dr.
Smith’s report was in conjunction with a one-time visit and that there was no treating physician
relationship.
As noted by Defendant, courts have affirmed decisions in which one-time examination
reports from Dr. Smith were accorded little weight. See Hudson v. Barnhart, 2005 WL 1560249,
*1 (8th Cir. Jul. 6, 2005)(“The ALJ gave good reasons for his resolution of the conflict between
the mental RFC opinion of Dr. Smith versus those of consulting psychologist Paul Iles and the
agency reviewing psychologists”). In Clement v. Barnhart, 2006 WL 1736629 (8th Cir. June 26,
2006), the Eighth Circuit concluded that the ALJ properly discounted the RFC assessment in Dr.
Smith’s report “after finding it was not supported by his own testing and evaluation, or by other

-14-

AO72A
(Rev. 8/82)

medical evidence in the record, and was inconsistent with Clement’s reported daily activities.”
Id. at *1. District Courts in the Western District of Arkansas have affirmed the ALJ decisions
which accorded little weight to Dr. Smith’s opinions. See Cole v. Astrue, 2009 WL 3158209, *8
(W.D.Ark. Sept. 29, 2009)(held that Dr. Smith’s opinion was inconsistent with the remaining
medical evidence of record); Partee v. Astrue, 2009 WL 2987398, *1 (W.D. Ark. Sept. 14,
2009)(held that the ALJ clearly recited the evidence of record and why he gave more weight to
the findings of Dr. Bunting over that of Dr. Smith); Haarstad v. Astrue, 2009 WL 2324711, *5
(W.D. Ark. July 27, 2009). The court in Cole also found that the ALJ was not biased against Dr.
Smith, but merely pointed out the “inconsistencies within Dr. Smith’s assessment and the
inconsistencies between Dr. Smith’s assessment and the other medical evidence of record.” 2009
WL 3158209 at *8, n.1. The undersigned is of the opinion that this is exactly what the ALJ did
in the present case.
Furthermore, the ALJ also addressed the report completed by Dr. Hudson who found that
Plaintiff’s concentration was mixed but her persistence and pace were within normal limits. With
regard to Plaintiff’s cognition, Dr. Hudson stated that Plaintiff was not mentally retarded but that
she might have some cognitive deficits and referred to Dr. Smith’s report that he himself did not
review. Dr. Hudson did not specifically find that Plaintiff had any cognitive deficits. The ALJ
also addressed the RFC assessments of Drs. Gale and Donahue, who did not have the benefit of
examining Plaintiff but did, unlike Dr. Smith, have the benefit of having Plaintiff’s entire medical
records before them prior to completing their assessments regarding Plaintiff’s capabilities.
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

-15-

AO72A
(Rev. 8/82)

determination.
C.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of record,
we find 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
Plaintiff's impairments do not preclude her from performing work as a small product assembler,
a kitchen helper and a meat trimmer.

Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.

1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
V.

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 22nd day of July 2011.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

-16-

AO72A
(Rev. 8/82)