Close v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 26, 2012. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JENNIFER N. CLOSE
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Jennifer N. Close, 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 claim for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under 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).
Plaintiff protectively filed her current applications for DIB and SSI on April 26, 2010,
alleging an inability to work since October 2, 2009,1 due to “1. Back problems; 2. Bulging discs
L4 and L5; 3. Fibromyalgia; and 4. Migraines.” (Tr. 203, 208). An administrative hearing was
held on April 4, 2011, at which Plaintiff appeared with counsel and she and her mother testified.
At the hearing before the ALJ, Plaintiff’s attorney amended the onset date to October 2, 2009. (Tr. 29).
By written decision dated July 6, 2011, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe osteoarthritis/degenerative disc disease. (Tr. 11). 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. (Tr. 12). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to perform the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).
(Tr. 12). With the help of a vocational expert (VE), the ALJ determined Plaintiff could perform
her past relevant work as a pharmacy technician. (Tr. 18).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 12, 2011. (Tr. 1-3). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and repeated here only to the extent necessary.
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)(D). 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 had engaged in substantial
gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §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 (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following arguments on appeal: 1) The ALJ erred in failing to find
Plaintiff’s migraine headaches constituted a severe impairment; 2) The ALJ erred in determining
Plaintiff’s RFC assessment; 3) The ALJ erred in failing to find Plaintiff credible; and 4) The
ALJ’s decision is not supported by substantial evidence. (Doc. 8).
An impairment is severe within the meaning of the regulations if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. § § 1520(a)(4)ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight abnormalities
that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §
§ 404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with regard to
the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cri. 1989).
In the present case, the ALJ recognized Plaintiff’s history of migraines. However, the
ALJ also noted that the record indicates that she did not take prescription migraine medication
except on those occasions when she presented herself to the emergency room. In addition,
Plaintiff reported that she had a migraine headache about twice a month, and normally only took
an over-the-counter migraine medication. (Tr. 11).
The Court finds there is substantial evidence to support the ALJ’s finding that Plaintiff’s
migraine headaches did not constitute a severe impairment.
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.
The ALJ found that Plaintiff had the RFC to perform the full range of light work. The
ALJ discussed Plaintiff’s medical records as well as her daily activities in making this
determination. Plaintiff lived with her three small daughters, boyfriend and disabled mother.
At the hearing, Plaintiff testified that she was not on any medications other than Excedrin
Migraine, that she would get up at around 7 am with her children, and that she had pain, “but I
can kind of overlook it.” (Tr. 47). Plaintiff reported that her 4 year old helped her prepare
breakfast. The most recent medical records are from Baxter Regional Medical Center, dated
August 8, 2010 and September 19, 2010. (Tr. 371- 382). On August 8, 2010, Plaintiff was
assessed with a migraine headache and lumbar pain. (Tr. 382). It was also reported that there
was some diffuse tenderness over the lower lumbar spine, but there was no real point tenderness.
(Tr. 382). On September 19, 2010, Plaintiff was diagnosed with a headache, and a CT scan of
Plaintiff’s head revealed unremarkable no-contrast CT scan of the head. (Tr. 380). At this visit,
Plaintiff did not complain of back, joint, or muscle pain. (Tr. 375).
The ALJ noted the opinions given by examining physician, Dr. Shannon Brownfield, and
non-examining physician, Dr. Alice M. Davidson. The ALJ acknowledged that Dr. Brownfield
indicated moderate/severe limitations in prolonged positions, walking, stooping, bending,
carrying, and lifting. However, the ALJ also noted that the amount and weight of Plaintiff’s
capacity for carrying and lifting was not assessed. Overall, he gave Dr. Brownfield’s assessment
“considerable weight.” (Tr. 16). The ALJ also had before him the Physical RFC Assessment
of Dr. Davidson, who concluded that Plaintiff could perform light work, could frequently climb
ramps/stairs/ladders/ropes/scaffolds, and balance, kneel, and crawl. Dr. Davidson also found
Plaintiff could occasionally stoop and crouch. (Tr. 268-269). The ALJ stated that he concurred
with the findings of the state agency medical consultants that Plaintiff was capable of light
exertional level work. (Tr. 16).
In addition, Plaintiff’s daily activities in taking care of three small children, preparing
meals, and doing the laundry are inconsistent with Plaintiff’s allegations of disabling symptoms.
The Court finds that based upon the above, there is substantial evidence to support the ALJ’s
conclusion that Plaintiff is capable of performing light work.
With respect to Plaintiff’s argument that the ALJ should have provided a hypothetical
question to the VE, the ALJ found that Plaintiff was able to return to her past relevant work as
a pharmacy technician and therefore, as argued by Defendant, VE testimony is not required when
Plaintiff is found not disabled at step four of the sequential evaluation process. Banks v.
Massanari, 258 F.3d 820, 827 (8th Cir. 2001). In this case, the VE testified that Plaintiff’s past
work as a pharmacy technician was light exertional work activity, and the ALJ is allowed to
determine that Plaintiff is not disabled when she can still perform the actual duties of a past
relevant job. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Plaintiff has failed
to establish an inability to do her past relevant work, and Plaintiff’s argument is therefore
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s RFC assessment.
Subjective Complaints and Credibility Analysis:
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 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 Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility
is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir.
In this case, the ALJ concluded, after careful consideration of the evidence, that
Plaintiff’s statements concerning the intensity, persistence and limiting effects of her
impairments were not credible to the extent they were inconsistent with the ALJ’s RFC
assessment. (Tr. 14). The ALJ considered Plaintiff’s daily activities, the fact that she was not
taking any medication other than over-the-counter medication, and the medical records. The ALJ
noted that there were no records of treatment between June 2008 and August 2010, except for
the delivery of her twins in December of 2009. (Tr. 15). The ALJ concluded that although
Plaintiff did have some problems related to her impairments, he was not persuaded that Plaintiff
was totally disabled and unable to perform work at a level consistent with his RFC assessment.
He noted that Plaintiff cared for her three small children, has had intermittent treatment, and had
only taken prescribed medication on an off and on basis, which he found to be inconsistent with
a claim of severely disabling symptoms. See Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir.
1987)(failure to seek regular treatment or obtain pain medication inconsistent with complaints
of disabling pain).
The Court finds that there is substantial evidence to support the ALJ’s credibility
For the foregoing reasons, as well as the reasons given in Defendant’s well-reasoned
brief, the Court finds there is substantial evidence to support the ALJ’s findings.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is
affirmed. The Court further finds that the Plaintiff’s Complaint should be dismissed with
DATED this 26th day of November, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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