Pidcock v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 12, 2013. (lw)

Pidcock v. Social Security Administration Commissioner

Doc. 10

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

DONALD PIDCOCK

PLAINTIFF

V.

NO. 12-3079

CAROLYN W. COLVIN,1
Acting Director of the Social Security Commission

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Donald Pidcock, 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 his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) 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 filed his applications for DIB and SSI on January 8, 2009 and January 10, 2008,

respectively, alleging an inability to work since January 1, 2008, due to “Congestive heart failure,
high blood pressure.” (Tr. 133-135, 138-141, 162, 168). An administrative hearing was held on

1

Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.

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April 21, 2010, at which Plaintiff appeared with counsel and testified. (Tr. 31-71).
By written decision dated August 23, 2010, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - congestive heart failure, high
blood pressure, diabetes, and obesity. (Tr. 16). 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. 18). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except he cannot climb; he can only occasionally balance and
stoop; he cannot kneel, crouch, or crawl; he cannot tolerate exposure to
extreme heat or cold; and he cannot tolerate exposure to hazards,
including no driving as part of work.
(Tr. 18-19). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was
unable to perform any past relevant work, but that there were other jobs Plaintiff could perform,
such as helper-production- nut and bolt assembler; production worker- bench assembler; and a
hand packager. (Tr. 24-25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered additional evidence and denied the request on June 15, 2010. (Tr. 1-4). Subsequently,
Plaintiff filed this action. (Doc. 1). The 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 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 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 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 his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
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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 his 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 his 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 his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following issues on appeal: 1) The ALJ’s decision is not supported by

substantial evidence; 2) The ALJ’s RFC finding is not supported by substantial evidence; 3) The
ALJ’s step-findings are not supported by substantial evidence; and 4) The ALJ erred in assessing
Plaintiff’s credibility. (Doc. 8).
A.

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
description of his 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
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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). “The ALJ is [also] required to set forth specifically a claimant’s limitations and to
determine how those limitations affect his RFC.” Id.
In this case, the ALJ found that Plaintiff had the RFC to perform sedentary work with
certain limitations. (Tr. 19). He considered the medical records and opinions and Plaintiff’s
description of his limitations. He addressed Plaintiff’s complaints as well as his daily activities,
the fact that Plaintiff had been a smoker, and that he began to reduce his smoking in 2006 when
he found out he had congestive heart failure. (Tr. 19-20). The ALJ went into great detail about
the various records of the physicians, and noted that the objective medical evidence of record did
not support the extent and severity of Plaintiff’s alleged limitations. (Tr. 20). He referenced
Plaintiff’s echocardiogram, which was good on May 15, 2006. He observed that Plaintiff was
very erratic in taking his blood pressure medication, and the record supports Plaintiff’s noncompliance. (Tr. 43, 228, 259, 279, 281, 292, 371, 384, 394, 429). In fact, it is noteworthy that
in 2001, Plaintiff reported to a physician that when he took Lotension, it controlled his high
blood pressure well. (Tr. 258). On September 16, 2004, when Plaintiff went to the Ottawa
County Free Clinic, his hypertension was found as “controlled.” (Tr. 271).

Plaintiff was

encouraged to decrease his smoking. (Tr. 271). On February 26, 2007, Plaintiff’s wife called an
Urgent Care Clinic and advised that Plaintiff had tried several blood pressure medications and
the only one that worked was Catapress, so he was prescribed a Catapress patch. (Tr. 337).
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“Failure to follow a prescribed course of remedial treatment without good reason is
grounds for denying an application for benefits.” Brown v. Barnhart, 390 F.3d 535, 540-541 (8th
Cir. 2004)(citations omitted). Although Plaintiff contends that he could not afford medication,
the record indicates that Plaintiff continued to chew tobacco and smoke cigarettes, even after
being urged to quit, and he was therefore somehow able to afford tobacco and cigarettes.
On April 9, 2008, Dr. R.F. Morgan, of Blackwell Medical Clinic, Inc., conducted an
“Internist Examination,” and in his report, he noted that Plaintiff’s upper extremities were
grossly normal; there was no redness, swelling or deformity of joints; the lower extremities were
negative; the upper extremities showed grip strength 5 on a scale of 1-5 with fine and gross
manipulation not impaired; there was a fine tremor to both hands, worse on the right; the lower
extremities showed no redness, swelling or deformity of joints; toe and heel walking was slightly
below normal; and the gait was safe and stable without assistive device. (Tr. 349). He also
provided a range of motion chart. (Tr. 350-353).
On December 19, 2008, Dr. Shannon H. Brownfield conducted a General Physical
Examination, and found Plaintiff’s range of motion was within normal limits, and concluded that
Plaintiff had moderate to severe limitations upon exertion and with prolonged walking and
standing. (Tr. 359-361).
On June 21, 2009, Robert Redd completed a Physical RFC Assessment, and found that
Plaintiff would be capable of performing light work with certain postural limitations. (Tr. 378379). He also noted that there was some evidence of noncompliance with antihypertensive
medications. (Tr. 384).
The ALJ summarized his RFC assessment as follows:
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In sum, the above residual functional capacity assessment is supported by
the state agency medical consultant’s opinion; the objective medical
evidence of record; the lack of compliance with blood pressure
medications; claimant’s argument of a lack of financial resources to
afford medication refuted by smoking more than ½ a pack of cigarettes
per day; claimant not following doctor’s recommendations to see a
cardiologist; a treatment gap of more than 1 year after the alleged onset
date; and the record revealing the claimant has received no more than
conservative treatment.
(Tr. 23). The Court finds that the ALJ sufficiently explained his RFC findings and gave
appropriate weight to the physicians’ opinions, and that there is substantial evidence to support
the ALJ’s RFC findings.
B.

Credibility Findings:

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 his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his 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 v. Barnhart, 314 F.3d 964, 966 (8th Cir.
2003).
In this case, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of the symptoms were not credible to
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the extent they were inconsistent with the RFC assessment. (Tr. 20). The ALJ discussed
Plaintiff’s daily activities, the fact that he was often non-compliant with his blood pressure
medicine, the fact that he was able to afford to smoke and chew tobacco, and the fact that there
was a treatment gap of 2 years.2 (Tr. 21-22).
Based upon the foregoing, as well as the reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the ALJ’s credibility findings.
C.

Step 5 Findings:

Plaintiff contends that the ALJ’s hypothetical question did not include all of the
impairments from which Plaintiff suffered and therefore, the ALJ should not have relied upon
the VE’s testimony.
At the hearing held before the ALJ, the ALJ’s hypothetical question set forth the
impairments which the ALJ accepted as true and which were supported by the record as a whole.
See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court believes that the
VE’s responses to the hypothetical question constitute substantial evidence supporting the ALJ’s
conclusion that Plaintiff’s impairments did not preclude him from performing other work as an
helper-production-nut and bolt assembler; production worker-bench assembler, and hand
packager. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from VE based on
properly phrased hypothetical question constitutes substantial evidence). It is also clear from the
VE’s testimony that he noted that the jobs and numbers he gave to support those jobs were based
upon the U.S. Publishing Employment Survey, which indicates that although the jobs were listed

2

Although Plaintiff was seen by a consultative examiner Dr. R.F. Morgan, he did not seek treatment until April
30, 2009, with Boston Mountain Rural Health Center, Inc. (Tr. 393).

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as medium, unskilled, they were also performed at the sedentary unskilled two level. (Tr. 65).
The Court notes that 20 C.F.R. § 404.1566(d) provides that the Commission will take
administrative notice of reliable job information available from various governmental and other
publications, and gives examples of such publications in subsection (1)-(5). The Court also notes
that the publication utilized by the VE in this case, the U.S. Publishing Employment Survey, is
not included in this list. However, in 20 C.F.R. § 404.1566(e), the use of the services of a VE
or other specialist is authorized. In this case, not only did the ALJ rely on testimony by the VE,
but the VE also explained the conflict between the DOT and his jobs by utilizing a publication.
The Eighth Circuit has held that the DOT definitions “are simply generic job descriptions that
offer the approximate maximum requirements for each position, rather than their range.”
Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000)(quoting Hall v. Chater, 109 F.3d 1255, 1259
(8th Cir. 1997).

“‘The DOT classifications may be rebutted with VE testimony which

demonstrates specific jobs whether classified as light or sedentary, may be ones that a claimant
can perform.’” Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010)(quoting Dobbins v. Barnhart,
182 Fed. Appx. 618, 619 (8th Cir. 2006)(unpublished per curiam).
Based upon the ALJ’s RFC findings, which this Court believes to be supported by
substantial evidence, along with the testimony of the VE, the Court is of the opinion that
substantial evidence supports the ALJ’s finding that there were other jobs Plaintiff could
perform.
IV.

Conclusion:

Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
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affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 12th day of August, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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