Ajpuac v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 25, 2013. (lw)

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

LAURA ALICIA AJPUAC

PLAINTIFF

v.

CIVIL NO. 11-3112

MICHAEL J. ASTRUE1, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Laura Alicia Ajpuac, 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 July 15, 2009,

alleging an inability to work since December 17, 2008, due to injuries from a fall at work and

1

Carolyn Colvin became the Acting Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn Colvin has been substituted for Commissioner Michael
J. Astrue as the Defendant in this suit.

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a compressed disc. (Tr. 143, 151, 169). An administrative hearing was held on May 4, 2010,
at which Plaintiff appeared with counsel and testified. (Tr. 28-51).
By written decision dated August 6, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 18).
Specifically, the ALJ found Plaintiff had the following severe impairments: a herniated lumbar
disc and obesity. 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. 20). The
ALJ found Plaintiff retained the residual functional capacity (RFC) to:
lift and carry 10 pounds occasionally, lift and carry less than 10 pounds
frequently, sit 6 hours in an 8-hour work day, walk and/or stand 2 hours in an 8hour work day, and climb, balance, crawl, kneel, stoop, and crouch on an
occasional basis. She can do work where the complexity of tasks is learned and
performed by rote, with few variables and little judgment required and
supervision required is simple, direct, and concrete.
(Tr. 20). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a helper production worker, a production worker, and a hand packer. (Tr. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing the additional evidence submitted, denied that request on September 7, 2011. (Tr.
1-4). 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, 13).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.

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II.

Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must 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.
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The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. § §404.1520, 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.
III.

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

because: 1) the ALJ erred in failing to consider all of Plaintiff’s impairments in combination; 2)
the ALJ erred in the analysis and credibility findings in regard to Plaintiff’s subjective
complaints of pain; 3) the ALJ erred in finding that Plaintiff retained the RFC to perform less
than a full range of sedentary work; and 4) the ALJ failed to fully and fairly develop the record.
A.

Combination of Impairments:

The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 17). The ALJ further found that
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 20). Such language demonstrates the ALJ considered
the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
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B.

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 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 Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility
is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in his brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors.
With regard to Plaintiff’s alleged back and neck pain, the ALJ noted that the medical
records revealed “essentially routine and/or conservative” treatment. See Robinson v. Sullivan,
956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment contradicted claims of
disabling pain). The record also revealed that Plaintiff successfully attained all of the goals set
forth in her physical therapy plan. (Tr. 283). Thus, while Plaintiff may indeed experience some
degree of pain due to her back and neck pain, the Court finds substantial evidence of record
supporting the ALJ's finding that Plaintiff does not have a disabling back or neck impairment.
See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir. 1997) (upholding ALJ's determination that

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claimant was not disabled even though she had in fact sustained a back injury and suffered some
degree of pain).
With regard to obesity, a review of the record reveals Plaintiff did not allege obesity as
a disabling impairment when she applied for benefits nor did she testify to problems she
experienced due to obesity at the hearing before the ALJ. See Anderson v. Barnhart, 344 F.3d
809, 814 (8th Cir.2003) (claim of obesity impairment waived on appeal where claimant did not
raise any limitation from the impairment in his application or during hearing).
With regard to Plaintiff’s alleged anxiety, it is noteworthy that Plaintiff did not allege a
disabling mental impairment in her applications for benefits. See Dunahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in application is
significant, even if evidence of depression is later developed). The record also failed to
demonstrate that Plaintiff sought on-going and consistent treatment from a mental health
professional 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).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, she 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); 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). Neither the medical evidence nor the reports concerning her daily
activities support Plaintiff’s contention of total disability. Accordingly, the Court concludes that
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substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective complaints were
not totally credible.
C.

The ALJ’s RFC Determination:

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). 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 examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical records
when he determined Plaintiff could perform sedentary work with limitations. In making this
determination, the ALJ noted that on June 21, 2009, Dr. Wade Ceola, one of Plaintiff treating
physicians from the Springfield Neurological & Spine Institute, opined that Plaintiff could return
to work without restrictions. (231, 259). The Court finds, based upon the record as a whole and
the well-stated reasons outlined in the Defendant’s brief, that Plaintiff’s argument is without
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merit. Accordingly, the Court finds there is substantial evidence of record to support the ALJ’s
RFC findings.
D.

Fully and Fairly Develop the Record:

While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel,
208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is
necessary for an informed decision), the record before the ALJ contained the evidence required
to make a full and informed decision regarding Plaintiff’s capabilities during the relevant time
period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop
record fully and fairly to ensure it includes evidence from treating physician, or at least
examining physician, addressing impairments at issue).
E.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion
that Plaintiff's impairments did not preclude her from performing work as a helper production
worker, a production worker, and a hand packer. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).

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IV.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 25th day of February, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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