Meza v. Social Security Administration
MEMORANDUM OPINION Signed by Honorable Erin L. Setser on September 12, 2013. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
AMBER C. YERENA
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Amber C. Yerena, 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) 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).
Plaintiff filed her applications for DIB and SSI on May 26, 2010, alleging an inability to
work since December 15, 2008, due to back problems, neurological problems, loss of movement
with entire left side, “has woke up with left side of body paralyzed,” back surgery, and adult
ADHD. (Tr. 114-122, 146, 149). An administrative hearing was held on February 11, 2011, at
which Plaintiff appeared with counsel and testified. (Tr. 30-56).
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.
By written decision dated March 11, 2011, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - degenerative disc disease of the
lumbar spine. (Tr. 12). 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. 13). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform
a full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). (Tr. 13). With
the help of the vocational expert (VE), the ALJ determined that Plaintiff was capable of
performing past relevant work as a poultry line worker, short order cook, cashier, and surgical
technician. (Tr. 15).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on July 14, 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. 3). Both parties
have filed appeal briefs, and the case is now ready for decision. (Docs. 7, 8).
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.
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. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following arguments on appeal: 1) Whether there is substantial
evidence from the record as a whole to support the ALJ’s decision that Plaintiff is not disabled;
and 2) Whether the ALJ erred in denying Plaintiff’s claim due to failure to undergo
recommended procedures or seek charitable procedures. (Doc. 7).
A. Whether Substantial Evidence Supports the ALJ’s Findings:
As early as 2000, Plaintiff began having low back and right hip pain. (Tr. 327). Upon
review of an MRI of Plaintiff’s back, her treating physician, Dr. Cyril A. Raben, MDPA, NWA
Spine & Orthopaedic Assoc., LLC, found Plaintiff had a “very large disc herniation at L4/5
seated to the right of midline.” (Tr. 324). On April 8, 2003, Plaintiff complained to Dr. Raben
of constant stabbing as well as numbness in her low back and right leg. (Tr. 319). In 2000 and
2003, Plaintiff received epidural steroid injections from Dr. Raben. (Tr. 318, 326).
In June of 2004, Dr. Raben performed a decompression of the L4/5 disc space on the left
with removal of the herniation. (Tr. 316). For the remainder of 2004, Plaintiff reported she felt
at least 90% better. (Tr. 311-314).
Over one year later, on October 19, 2005, Plaintiff renewed her complaints of back pain
with Carla Boyd, R.H.P., of Dr. Raben’s office. (Tr. 309). Plaintiff reported that she fell over the
summer, but was checked with CT and MRI scanning and there was not anything such as a disc
herniation, fracture or stenosis noted. (Tr. 309). At that time, Plaintiff was working full time.
(Tr. 309). Her gait and station were reported as normal, she was able to heel and toe walk with
no difficulty, and her deep tendon reflexes were intact and symmetrical for patellar and Achilles
reflexes, although she occasionally noted decreased sensation in the left leg. (Tr. 310).
On April 27, 2006, Plaintiff reported to Dr. Raben that starting two months prior, she
began aching in her back, especially the left side iliac region. (Tr. 235). She was taking no
medications at that time, and Dr. Raben assessed Plaintiff with L-spine disc herniation; chronic
pain, “post lamy syn.” (Tr. 237). An MRI of Plaintiff’s Lumbar Spine, performed on May 31,
2006, revealed the following:
At L4-5, there appears to be a defect in the right lamina with some
associated enhancement surrounding the thecal sac, likely postoperative
change. There is a broad-based annular disc bulge but without definitive
neural impingement or neuroforaminal narrowing. Moderate disc space
narrowing and disc desiccation is seen. Otherwise, this study is
On June 6, 2006, Plaintiff received an epidural steroid injection from Dr. Raben, who
diagnosed Plaintiff with L-spine disc degeneration and L-spine disc herniation. (Tr. 233). It was
thereafter noted on July 14, 2006, that Plaintiff did not show up for an appointment with Dr.
Raben. (Tr. 228).
Over one and one-half years later, on November 16, 2007, Plaintiff went to Ozark
Guidance, Inc., for evaluation. She was diagnosed as follows:
Depressive Disorder NOS
Rule out ADHD-combined type
Borderline Personality Disorder
Irritable Bowel Syndrome
Problems with primary support group
Problems with Access to Health Care Service
GAF - 45
(Tr. 391). Plaintiff reported using cannabis to sleep when her pain was bad because she did not
like to take pills. (Tr. 397). On January 29, 2008, Plaintiff was discharged from Ozark Guidance,
Inc., because she lost contact. (Tr. 242).
On October 3, 2008, Plaintiff presented to the emergency room at St. Johns Hospital in
Berryville, Arkansas, complaining of left side numbness. (Tr. 350). On October 20, 2008,
Plaintiff presented herself to Crossroads Medical Clinic, seeking referral to a neurologist. (Tr.
220). She was then diagnosed with neuropathy in “OT dis;” Neuralgia/neuritis unspec., and
“postsurgical states OT.” (Tr. 220).
On December 23, 2008, Plaintiff was seen by Dr. Glady Jacob, of Branson Neurology and
Pain Center. (Tr. 208-210). At that time Plaintiff reported that she had been getting more
headaches the previous few months. (Tr. 208). Dr. Jacob reported that Plaintiff reported smoking
marijuana about 1-2 times per week. (Tr. 209). Plaintiff was taking ibuprofen as needed for pain,
and was reported as having no depression or anxiety. (Tr. 209). Her stance was steady and the
impression given was lumbosacral spondylosis. (Tr. 210). Dr. Jacob recommended that they
check an MRI of Plaintiff’s lumbar spine, as well as an EMG/nerve conduction study to check
for nerve entrapment. (Tr. 210). However, Dr. Jacob reported that Plaintiff told her that she could
not do those tests at that time, as she did not have insurance. Dr. Jacob recommended that
Plaintiff apply for Skaggs Charity and if she was approved for financial assistance, Dr. Jacob
reported that she would go ahead and check an MRI of her back as well as an EMG/nerve
conduction study. Following those tests, Dr. Jacob stated she would evaluate Plaintiff for pain
injections. (Tr. 210). There is no indication in the record that Plaintiff ever applied for “Skaggs
Charity” or underwent the EMG/nerve conduction studies.
Over a year later, on March 11, 2010, Plaintiff presented herself to Crossroads Medical
Clinic, and it was reported that Plaintiff’s mood had been good, and she was overall doing well.
(Tr. 216). She was diagnosed with attention deficit disorder of childhood with hyperactivity. (Tr.
In a Mental RFC Assessment and Psychiatric Review Technique form, completed by nonexamining consultant Dr. Winston Brown on June 29, 2010, Plaintiff was found to have a mild
degree of limitation in restriction of activities of daily living; a moderate degree of limitation in
difficulties in maintaining social functioning and in maintaining concentration, persistence, or
pace, and no episodes of decompensation, each of extended duration. (Tr. 261). Dr. Brown found
that Plaintiff was able to perform work where interpersonal contact was incidental to the work
performed, e.g. assembly work; where complexity of tasks was learned and performed by rote,
with few variables, and little judgment; and where supervision required was simple, direct and
concrete (unskilled). (Tr. 265).
A Physical RFC Assessment was completed by Dr. Karmen Hopkins on July 1, 2010,
wherein Dr. Hopkins found that Plaintiff was able to perform light work, with occasional
stooping and crouching. (Tr. 270). Thereafter, Plaintiff visited Crossroads Medical Clinic four
more times in 2010, complaining of back pain and numbness on her left side ; back pain on her
right side and feeling her head was “shakey” at times; complaining of pain in her head, dizziness,
and a sore spot on the left side of her head ; and that her head was getting worse (Tr. 278, 402,
406, 407). A CT of Plaintiff’s head without contrast was performed on December 8, 2010,
which revealed a normal non-contrast head CT. (Tr. 409). On December 23, 2010, Plaintiff was
seen at ECHO by Dr. Kresse and was assessed with lumbar stenosis, possible herniated disc;
herniated disc w/neuropathy; and migraine headaches. (Tr. 411).
RFC is the most a person can do despite that person’s limitations.
§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 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
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 went to great lengths to discuss the evidence in the record and the
treatment prescribed by various physicians who examined Plaintiff. He concluded that Plaintiff’s
degenerative disc disease and any related limitations were not severe to a degree that would limit
activities beyond the scope of his RFC assessment. (Tr. 14). He also factored in Plaintiff’s
complaints of pain and discomfort, and concluded that Plaintiff’s pain relief seeking behavior
and treatment were not indicative of a degree of pain that would limit activities beyond the scope
of his RFC. (Tr. 15).
Finally, the ALJ addressed Plaintiff’s daily activities, and correctly noted that Plaintiff
cared for her two younger children with the help of her 16-year-old daughter. Plaintiff also
prepared meals, did laundry, and drove. (Tr. 49-52). In a June 8, 2010 Function Report - Adult,
Plaintiff reported that she cooked, cleaned, and bathed her six year old, went outside once a day,
drove, shopped for groceries and went to church when she could. (Tr. 169-173).
Clearly, the ALJ considered all of the medical evidence as well as Plaintiff’s complaints
of pain. He also considered Plaintiff’s daily activities, and concluded that Plaintiff retained the
RFC to perform her past relevant work.
Plaintiff argues that substantial evidence supports Plaintiff is limited to unskilled work
and that two of Plaintiff’s past jobs were performed at the semi-skilled and skilled level. “The
testimony of a vocational expert is relevant at steps four and five of the Commissioner’s
sequential analysis, when the question becomes whether a claimant with a severe impairment has
the residual functional capacity to do past relevant work or other work.” Gilbert v. Apfel, 175
F.3d 602, 604 (8th Cir. 1999).
The Court notes in this case the ALJ relied upon the testimony of a VE, who testified that
the poultry laborer line worker was light, unskilled; the short order cook was light, semi-skilled;
the video rental clerk was the same as a cashier II, which is light, unskilled; and the surgical
technician was light, skilled. (Tr. 40). Therefore, while Plaintiff argues two of the positions were
at the skilled level, two of the positions were unskilled, and Plaintiff’s argument is without merit.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC assessment and his conclusion that Plaintiff can return to her past relevant work.
Failure to Undergo Recommended Procedures or Seek Charitable
Plaintiff argues that the ALJ found that she failed to follow treatment, but did not
determine whether Plaintiff was justified in doing so. It is argued that Plaintiff’s lack of
insurance and financial resources limited her ability to access certain diagnostic tests.
“[T]he Eighth circuit has specifically held that plaintiff’s lack of financial resources does
not excuse her failure to seek medical treatment absent evidence that plaintiff sought low or nocost treatment or that any provider denied her treatment because of her financial situation.”
Norman v. Apfel, 48 F.Supp. 2d 905, 909 (W.D. Mo. 1999). “Economic justifications for the
lack of treatment can be relevant to a disability determination.” Clark v. Shalala, 28 F.3d. 828,
831, n.4 (8th Cir. 1994).
In his opinion, the ALJ noted that Dr. Jacob recommended that Plaintiff apply for
“Skaggs Charity,” but that there was no evidence that Plaintiff followed up on that
recommendation. (Tr. 14). Plaintiff argues that there is also “no evidence” she did not try but did
not qualify. (Doc. 7 at p. 15). However, it is Plaintiff’s burden of proving disability, and the
Court is inclined to believe that if Plaintiff did pursue the Skaggs Charity avenue and was not
qualified, she would have provided the ALJ or the Court with evidence of such. Furthermore,
Plaintiff was somehow able to afford to smoke marijuana one to two times a week. Plaintiff
offered no testimony or other evidence that she had been denied further treatment or access to
medication on account of financial constraints. Id.
Based upon the foregoing, as well as for those reasons given in Defendant’s well-stated
brief, the Court finds there is substantial evidence to support the ALJ’s finding that Plaintiff
failed to follow recommended treatment.
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
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 September, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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