McNeely v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 20, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). 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
The plaintiff filed her applications for DIB and SSI on March 16, 2010, alleging an onset
date of October 5, 2009, due to plaintiff’s Seizures, Hypertension, and Difficulty Reading (T.
186). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then
requested an administrative hearing, which was held on May 23, 2011. Plaintiff was present and
represented by counsel.
At the time of the administrative hearing, plaintiff was 52 years of age and possessed a
3rd Grade Education. The Plaintiff had past relevant work (“PRW”) experience as a Dishwasher
On October 5, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s seizure disorder, hypertension. low average IQ, and alcohol abuse did not meet
or equal any Appendix 1 listing. T. 13-14. The ALJ found that plaintiff maintained the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with
some non-exertional limitations. T. 15. With the assistance of a vocational expert, the ALJ then
determined Plaintiff could perform his past relevant work as a Dishwasher. T. 20.
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. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 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 his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if
the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or 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 (2003).
The Plaintiff contends the ALJ committed error by (A) failing to find that the Plaintiff
met the requirements of a listed impairment, and (B) by improperly discounting the credibility of
A. Step Three
The Plaintiff first contends that ALJ committed error by failing to find that his seizure
disorder met a listed impairment. (ECF No. 10, p. 9). The determination of whether a claimant
meets or equals an impairment described in the Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, Appendix 1, is made at step three of the disability determination process. 20 C.F.R. §
416.920(a)(4)(iii). During this step, the ALJ has the responsibility to decide whether “medical
equivalence” has been established. Id. § 416.926(e). An impairment is medically equivalent
under the regulations if it is “at least equal in severity and duration to the criteria of any listed
impairment.” Id. § 416.926(a). If the ALJ finds that a claimant has an impairment that meets or
equals one of the listings, then the claimant will be found disabled. Id. § 416.920(a)(4)(iii).
Carlson v. Astrue 604 F.3d 589, 592 (C.A.8 (Iowa),2010)
Listing 11.02 directs a finding of disabled when the claimant shows:
11.02 Epilepsy—convulsive epilepsy, (grand mal or psychomotor), documented
by detailed description of a typical seizure pattern, including all associated
phenomena; occurring more frequently than once a month in spite of at least 3
months of prescribed treatment. With:
A. Daytime episodes (loss of consciousness and convulsive seizures) or
B. Nocturnal episodes manifesting residuals which interfere significantly
with activity during the day.
Listing 11.03 describes the criteria for disability due to seizures that do not involve the
loss of consciousness or convulsions:
11.03 Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or
focal), documented by detailed description of a typical seizure pattern,
including all associated phenomena; occurring more frequently than once
weekly in spite of at least 3 months of prescribed treatment. With
alteration of awareness or loss of consciousness and transient postictal
manifestations of unconventional behavior or significant interference with
activity during the day.
The ALJ stated that there “is no credible evidence in the medical record showing that the
claimant experiences seizures despite 3 months of prescribed treatment.” (T. 14). This seems to
be the total of the ALJ discussion at step two regarding the Plaintiff’s seizures, however,
subsequently in the ALJ’s decision he noted that the Plaintiff admitted in his Disability Report
dated October 2009 that he had last taken medication in July 2009. (T. 195). The court notes that
this is not a form that the Plaintiff is completing but a form that a government worker is
completing based upon information supplied by the Plaintiff. Regardless, that information does
not appear to be correct.
The pharmacy records from Fred’s Pharmacy shows the last prescription the Plaintiff
obtained for Divalproex was filled there in June 2009 and not refilled again until February 15,
2011. (T. 213). It appears, however, from the prescription record from Walmart that a
prescription for a quantity of 60 Divalproex EC500MG was filled on September 11, 2009. (T.
184). The Plaintiff’s prescription at that time was for 500mg b.i.d. (two times per day) which
would have that prescription run through October 2009. The Plaintiff still appears to have been
without his medication for around 14-16 months.
It is further verified by the medical records that reflect in February 2011 the Plaintiff
reported to his treating physician that he had “not been taking his meds as he should” because he
ran out “last week”. (T. 427). There does not appear to be a prescription that was filled between
September 2009 and February 2011. It is clear that the Plaintiff began to have his seizure
medication filled again beginning in February 2011 but his doctor reports for February 2011 (T.
427) and March 2011 (T. 426) do not reflect any complaints of seizures.
The burden of proof is on the plaintiff to establish that his or her impairment meets or
equals a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967
(1990). To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at
530, 110 S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how
severely, does not qualify.”); Johnson v. Barnhart 390 F.3d 1067, 1070 (C.A.8 (Ark.),2004).
The Plaintiff has failed to prove that he continued to have seizures “occurring more
frequently than once weekly in spite of at least 3 months of prescribed treatment”. Thus, I find
the ALJ’s decision that the Plaintiff did not meet the listed impairment under 11.02 or 11.03
supported by the record.
B. Step Four
The Plaintiff next complains that the ALJ’s decision that the Plaintiff can perform his
past relevant work as a dishwasher is not supported by substantial evidence. (ECF No. 10, p. 13).
Step four requires the ALJ to consider whether the claimant retains the RFC to perform
her past relevant work. The claimant bears the burden of demonstrating an inability to return to
past relevant work. Pate-Fires v. Astrue 564 F.3d 935, 942 (C.A.8 (Ark.),2009) citing Steed v.
Astrue, 524 F.3d 872, 875 n. 3 (8th Cir.2008). The ALJ will find that a claimant is not disabled if
he retains the RFC to perform: (1). The actual functional demands and job duties of a particular
past relevant job; or (2) The functional demands and job duties of the occupation as generally
required by employers throughout the national economy.
In determining a claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’
” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2002))
The Plaintiff contends that the ALJ improperly discredited the Plaintiff’s subjective
complaints. The ALJ must consider several factors when evaluating a claimant's subjective
complaints of pain, including claimant's prior work record, observations by third parties, and
observations of treating and examining physicians relating to 1) the claimant's daily activities; 2)
the duration, frequency, and intensity of pain; 3) precipitating and aggravating factors; 4) dosage,
effectiveness and side effects of medication; and 5) functional restrictions. Casey, 503 F.3d at
695 (8th Cir.2007) (citing Polaski v. Heckler, 729 F.2d 1320, 1322 (8th Cir.1984). The ALJ may
discount subjective complaints when they are inconsistent with the evidence as a whole. Id.
(citing Polaski, 739 F.2d at 1322). “The ALJ is not required to discuss each Polaski factor as long
as the analytical framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781,
783 (8th Cir.2004).
The ALJ found that the “claimant alleges that he is unable to work due to seizure
disorder, hypertension, and a past right ankle fracture (Testimony; Exhibits 2E, 3E, and 4E).
Furthermore, while the claimant did not allege these impairments, the medical evidence of record
reveals a low average IQ and alcohol abuse (Exhibits IF, 2F, 5F, 11F, and 12F). The claimant
alleges that his impairments cause seizures on average of every other day, dizziness, feelings of
being hot and sweaty, leg swelling, and disturbed sleep due to seizures (Testimony; exhibits 2E
and 3E). The claimant further alleges that he cannot read or write well (Testimony; exhibits 2E
and 4E). The claimant also alleges that his seizure medication causes dizziness (Testimony).
Moreover, the claimant alleges that his symptoms affect his ability to lift, squat, bend, stand, talk,
remember, concentrate, follow written instructions, and handle stress (Testimony and exhibit
The ALJ found “that the claimant's medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity assessment.” T. 16-17.
The ALJ listed, among other findings, that the Plaintiffs failure to comply with his
medication, that the record showed that his seizures were in fact well controlled with medication
, and his continued abuse of tobacco and alcohol reduced his credibility.
a. Failure to Comply
The ALJ first determined that the Plaintiff was non-compliant with treatment. As
previously discussed the Plaintiff failed to take any seizure medication between October 2009
and February 2011. In addition to the results of objective medical tests, an ALJ may properly
consider the claimant's noncompliance with a treating physician's directions, Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir.2001), including failing to take prescription
medications, Riggins, 177 F.3d at 693, seek treatment, Comstock v. Chater, 91 F.3d 1143,
1146-47 (8th Cir.1996), and quit smoking. Kisling v. Chater, 105 F.3d 1255, 1257 (8th
Cir.1997); Choate v. Barnhart 457 F.3d 865, 872 (C.A.8 (Mo.),2006). As pointed out above the
Plaintiff was off of any seizure medication from September 11, 2009 (T. 184) until February 15,
2011 (T. 213).
The Plaintiff attempted to argue that he was off of his medication because he could not
afford it however he admitted at the hearing that he was still smoking about a pack to a pack and
a half per day. (T. 48-49). See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (noting that
despite the claimant’s claim that he could not afford medication, the fact that he chose to smoke
rather than pay for medications was inconsistent with disabling pain). His medical records from
2002 reflected that he smoked “about a pack a day ” (T. 259). What is clear is that the Plaintiff is
a heavy smoker, has been for years, and persisted at the time of hearing. (T. 261, 262, 269, 291,
305, 392, 399). His claim that he could not afford medication is without merit.
b. Seizures Effectively controlled with medication
The ALJ noted that the Plaintiff’s seizure disorder appeared to be effectively controlled
with proper medication. (T. 17). The first medical record of a seizure was in December 2004.
(T.338). The next reference to any seizure problem was self reported by the Plaintiff when he
was hospitalized for detoxification from alcohol in 2006 (T. 386). The next medical report that
reflects the Plaintiff’s report of a seizure was December 4, 2009. (T. 428). At this time the
Plaintiff had been out of medication since October 2009. (T. 184). The Plaintiff began to re-fill
his seizure medication in February 2011. After being back on his seizure medication the
Plaintiff’s visits to his treating physician in February 2011 (T. 427) and March 2011 (T. 426)
both reflect that he had suffered no seizure activity.
Impairments that can be controlled effectively with medication are not disabling for the
purpose of determining eligibility for SSI benefits. See, e.g., Brown v. Barnhart, 390 F.3d 535,
540 (8th Cir.2004); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987); see also Odle v. Heckler,
707 F.2d 439, 440 (9th Cir.1983) (affirming a denial of benefits and noting that the claimant's
impairments were responsive to medication). Warre v. Commissioner of Social Sec. Admin. 439
F.3d 1001, 1006 (C.A.9 (Or.),2006).
c. Alcohol Use
The Plaintiff stated on his application in March 2010 that he did not use alcohol. (T. 182)
The Plaintiff was cautioned about the use of alcohol and seizure medication in his prescription
medication information. (T. 183). The Plaintiff was noted to have Tobacco and Alcohol Abuse
by his treating physician in 2002 and cautioned against abuse of these. (T. 257). He was
cautioned again to decrease his alcohol intake in 2003 (T. 266) and 2006 (273). In October 2006
the Plaintiff was assessed with Hypertension, GERD, Tobacco abuse and alcohol abuse (T. 277)
and diagnosed with “multiple ulcers consistent with gastritis most likely secondary to alcoholism
or alcohol intake” (T. 275). In November 2006 he represented that he was “down from a gallon
whisky/vodka to about a pint over the last several weeks” but he was not willing to do inpatient
treatment. (T. 274). During the Plaintiff’s Mental Diagnostic Evaluation and Intellectual
Assessment in December 2009 he admitted that he “drinks about two 6-packs per week (over two
nights)” and on some weeks, admitted “drinking as much as four 6-packs of beer in one week”
(T. 304) and he admitted that history of excessive alcohol use and tobacco use continued through
the present (December 2009).
The Plaintiff was diagnosed with Alcohol Abuse by Dr. W. Charles Nichols (T. 307).
The ALJ properly noted periods of noncompliance with Plaintiff’s medication and treatment
plan. Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (ALJ may properly consider
noncompliance with medical treatment in weighing a claimant’s credibility).
While the ALJ determined that the Plaintiff’s alcohol consumption detracted from his
credibility he did not find that his alcohol intake precluded him from benefits. The ALJ stated
that while “I find the claimant’s alcohol abuse to be severe, the fact that he was able to work
while apparently drinking more than he currently does leads me to conclude that this condition
imposes no disabling limitation on the claimant’s ability to work.” T. 19.
“If an ALJ explicitly discredits the claimant's testimony and gives good reason for doing
so, we will normally defer to the ALJ's credibility determination.” Gregg v. Barnhart, 354 F.3d
at 714 (Iowa, 2003); Human v. Barnhart, 2006 WL 2422182, 3 (D.Kan.) (D.Kan.,2006). The
court finds that the ALJ has stated good reasons to discount the credibility of the Plaintiff.
The ALJ found that the Plaintiff had the RFC “to perform a full range of work at all
exertional levels, but with the following non exertional limitations: the claimant cannot climb
ladders, ropes, or scaffolds, must avoid all exposure to hazards such as unprotected heights, large
bodies of water, driving as a part of work activities, hazardous machinery, or moving parts.
Further, the claimant can understand, remember, and carry out simple, but not detailed,
instructions, can have no more than casual contact with the general public, and can attend
to simple tasks for 2 hours at a time over an 8-hour workday, and he can perform work
which requires no more than gradual and infrequent changes in the workplace setting.” (T. 16).
This RFC determination led the ALJ to conclude that the Plaintiff could return to his past
relevant work as a dishwasher.
The only dispute that the Plaintiff claims to the ALJ’s RFC assessment is concerning the
ALJ’s discounting of the Plaintiff’s credibility. That issue has been addressed above and the
court has reviewed the ALJ’s RFC assessment and finds that it is supported by the record.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this 20th day of December 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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