Clary v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 6, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Suzanne Clary, 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 supplemental security income (SSI) under the provisions
of Title 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 application for SSI on June 2, 2011, alleging an
inability to work since September 6, 1989, due to mental problems, depression, ADHD,
borderline IQ, and seizures. (Tr. 157-164, 181, 185). An administrative hearing was held on
August 23, 2012, at which Plaintiff appeared with counsel, and she and her ex-husband testified.
By written decision dated November 15, 2012, the ALJ found that Plaintiff had an
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.
impairment or combination of impairments that were severe - seizures and a mood disorder. (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 work at all exertional levels but with the following
nonexertional limitations: the claimant can understand, remember, and
carry out simple, routine, and repetitive tasks; respond to usual work
situations and routine work changes and to supervision that is simple,
direct, and concrete; the claimant can occasionally interact with
supervisors and co-workers, but should not interact with the public; and
the claimant must avoid hazards including unprotected heights and heavy
(Tr. 14-15). With the help of the vocational expert (VE), the ALJ determined that Plaintiff had
no past relevant work, but that there were jobs Plaintiff would be able to perform, such as
housekeeper, machine tender, and inspector/tester. (Tr. 20-21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 31, 2013. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 16).
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 her 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. 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) The ALJ erred in his RFC
determination; 2) The ALJ erred in finding Plaintiff’s impairments did not meet or equal a
listing; and 3) The ALJ’s decision is not supported by substantial evidence. (Doc. 12).
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.
Plaintiff argues that the ALJ erred when he failed to account for the findings of Drs.
Brown and Bunting, as well as the observations of treatment providers at Vista Health.
It is noteworthy that in this case, records of Plaintiff’s medical treatment other than those
directed by the Commissioner begin on January 6, 2006, long before June 2, 2011, the
application date. Nevertheless, the ALJ reported that he considered the complete medical history,
consistent with 20 C.F.R. 416.912(d). (Tr. 10).
Plaintiff was treated for mental health issues at Vista Health on January 6, 2006 (Tr. 489492); April 7, 2006 (Tr. 494-495); and February 17, 2007. (Tr. 572-573, 585-589). She was
treated for intentional overdose at North Arkansas Regional Medical Center on August 8, 2010.
(Tr. 334-354). In addition, on December 6, 2010, Plaintiff was admitted to Baxter Regional
Medical Center after taking too many pills. (Tr. 376-381).
On June 30, 2011, Vann Smith, Ph.D., conducted a Neuropsychological Evaluation. (Tr.
300-303). On July 6, 2011, Dr. Smith completed a Mental RFC Questionnaire, wherein he
concluded that Plaintiff had severe limitations and would miss more than four days of work per
month. (Tr. 270). He found Plaintiff had a current GAF of 35. (Tr. 267).
On October 26, 2011, Dr. Anandaraj Subramantum conducted a General Physical
Examination, where he noted that Plaintiff denied being on any medication. (Tr. 495). He also
found that Plaintiff’s range of motion in all extremities was normal. (Tr. 500). He diagnosed
Plaintiff as follows:
1. Hx Bipolar Disorder
2. Hx of Suicidal in past
3. Borderline Personality Disorder
(Tr. 502). Dr. Subramantum concluded that Plaintiff needed to be evaluated by a psychiatrist.
On November 1, 2011, a Mental Status and Evaluation of Adaptive Functioning was
performed by Nancy A. Bunting, Ph.D. (Tr. 517-524). Dr. Bunting concluded that Plaintiff was
not a reliable informant, and discussed in great detail the many inconsistent statements Plaintiff
gave to Dr. Bunting and other health care providers. (Tr. 522). Dr. Bunting also concluded that
given Plaintiff’s level of unreliability, her reports of pain should be evaluated carefully. (Tr.
522). Dr. Bunting took issue with Dr. Smith’s statement that Plaintiff’s judgment and insight
were intact. (Tr. 522). She pointed out that Plaintiff could do all of her self-care skills, smoked
two cigarettes daily, and drank a pot of coffee and four 20-oz. bottles of Mountain Dew daily.
(Tr. 523). Plaintiff also performed regular chores, such as washing dishes, doing laundry,
sweeping, vacuuming and cooking. Plaintiff spent her time watching television, doing
housework, listening to radio and music, reading, using facebook, and spending up to 8 hours
playing Monsterville. (Tr. 523). Dr. Bunting found that Plaintiff communicated and interacted
in a socially adequate manner; communicated in an intelligible and effective manner; had little
ability to cope with the typical mental/cognitive demands of basic work-like tasks if she had
made her best effort; that she could handle some work stress or change if she was not using
drugs; and that she could follow instructions. (Tr. 523). Dr. Bunting found Plaintiff had the
ability to attend and sustain her concentration on basic tasks, had some ability to sustain
persistence in completing tasks, and was able to persist with things that interested her. (Tr. 523).
She also had some ability to complete work-like tasks within an acceptable timeframe. (Tr. 524).
Dr. Bunting concluded that Plaintiff’s effort was minimal and her cooperation was superficial,
and that Plaintiff could not handle funds by herself. (Tr. 524).
On November 3, 2011, non-examining consultant, Dr. Stephen A. Whaley, completed
a Physical RFC Assessment form, finding that Plaintiff had no exertional limitations, but that
she should avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation and
hazards (machinery, heights, etc.). (Tr. 509, 512).
On November 8, 2011, non-examining consultant, Jon Etienne Mourot, Ph.D., completed
a Psychiatric Review Technique form and a Mental RFC Assessment. (Tr. 529-541, 543-545).
Dr. Mourot found that Plaintiff had a mild degree of limitation in restriction of activities of daily
living and in maintaining social functioning, and had a moderate degree of limitation in
difficulties in maintaining concentration, persistence, or pace. (Tr. 539). Dr. Mourot noted that
regarding Plaintiff’s seizures, the consultative examiner correctly pointed out that there was no
independent, objective documentation of a seizure disorder. (Tr. 545). Dr. Mourot concluded that
it appeared Plaintiff was able to perform work where interpersonal contact was incidental to
work performed, where complexity of tasks was learned and performed by rote, where tasks had
few variables and required little judgment, and where supervision required was simple, direct,
and concrete, concluding that Plaintiff could perform unskilled work. (Tr. 545).
After the hearing held before the ALJ, on September 12, 2012, Plaintiff was seen by
Philip Brown, Ph.D. (Tr. 563-569). Dr. Brown noted that Plaintiff had been cutting her wrists
again for a couple of months. (Tr. 563). Plaintiff reported to Dr. Brown that she ate all the time,
but was bulimic. (Tr. 564). She reported that she was hearing voices since she quit taking Prozac
four months prior, and that before she discontinued taking the Prozac she was not hearing the
voices. (Tr. 564). Plaintiff told Dr. Brown that she had taken no form of medication in the
previous four months, because she could not afford it. (Tr. 565). She indicated the only
substance she used was alcohol and “marijuana, but it’s once in a blue moon. I haven’t smoked
pot in three months.” (Tr. 567). She said she consumed alcohol “about once a week,” and when
she drank, it was typically to the point of intoxication. (Tr. 567). Dr. Brown assessed Plaintiff
Impulse-control disorder nos
Depressive disorder nos
Personality disorder nos
Hepatitis C, epilepsy, obesity, asthma
Problems with primary support group, problems related to the social
environment, occupational problems, educational problems, economic
GAF - 50 (current)
(Tr. 568). Dr. Brown reported that most of Plaintiff’s psychiatric symptoms did not appear to
be severe in nature or to significantly impact her functioning in a negative manner. However, he
found that some of her symptoms did have a negative impact on her functioning - “it is clear her
psychiatric symptoms impact her abilities to manage her behavior in ways that would be
conducive to her establishing and maintaining healthy relationships and becoming gainfully
employed.” (Tr. 568). Dr. Brown found that Plaintiff’s symptoms of depression appeared to
have been reasonably managed for most of the past four years by Prozac, and that since not
taking her medication, she had experienced a more pronounced state of depression, the reemergence of self-abusive behavior in the form of cutting, the recurrence of auditory
hallucinations, increased irritability, and outbursts of anger. (Tr. 569). He found that anger and
impulsivity were two symptoms that would “almost certainly preclude her from securing and
maintaining gainful employment.” (Tr. 569).
Dr. Brown also completed a Mental RFC Questionnaire, although he failed to answer the
question relating to the frequency and length of contact. (Tr. 557). He did not believe Plaintiff
had a low IQ or reduced intellectual functioning, but that she would miss more than four days
per month. (Tr. 559-560).
As noted by Defendant, the lack of any specialized mental health treatment received
during the relevant time period undermines Plaintiff’s claims of disability. Nevertheless, the
ALJ considered the medical evidence before the relevant time period and concluded she had a
severe mood disorder.
With respect to Dr. Brown’s evaluation, the ALJ addressed his findings, noting that Dr.
Brown diagnosed Plaintiff with the diagnoses of impulse control disorder, NOS; depressive
disorder, NOS: and personality disorder, NOS. (Tr. 17). The ALJ also noted the inconsistent
stories Plaintiff told the various health care providers regarding what drugs she had taken,
reporting that Plaintiff reported to evaluators with the UAMS Department of Pediatrics in
December of 2006 that she had used marijuana, methamphetamine, cocaine, ecstasy, and LSD,
but reported to Dr. Brown that the only drugs she had ever used were alcohol, marijuana,
methamphetamines, and pain pills, and reported only “occasional” use of alcohol to Dr. Smith
in June of 2011. (Tr. 17-18). The ALJ afforded little weight to Dr. Brown’s opinion, as he found
Plaintiff provided Dr. Brown with what appeared to be inaccurate information, and that Dr.
Brown’s examination was performed through an attorney referral in an effort to generate
evidence for Plaintiff’s application. (Tr. 19-20).
With respect to Dr. Bunting’s evaluation, the ALJ noted that Plaintiff reported to Dr.
Ronald Clements that she had two sons and one daughter in August of 2010, but reported to Dr.
Smith and Dr. Bunting in November of 2011 that she had no children. (Tr. 17). When Dr.
Bunting questioned Plaintiff further about having had no children, Plaintiff then reported that she
had a set of twins who died at birth only. (Tr. 17, 518). The ALJ also noted that Plaintiff
provided inconsistent information when she reported to Dr. Lloyd that she had been sentenced
to one year of probation for terroristic threatening and to Dr. Bunting that she had been charged
with terroristic threatening, but that the charges were dropped. (Tr. 18, 519).
The ALJ discussed the fact that Dr. Bunting found Plaintiff to be very uncooperative and
difficult, that she was “superficially and reluctantly” cooperative during her evaluation, and was
“NOT” a reliable informant. (Tr. 19, 522). The ALJ concluded that it appeared that Plaintiff
attempted to use Dr. Bunting’s examination as an opportunity to generate inaccurate evidence
and found Plaintiff’s unwillingness to assist in the production of a complete and accurate record
to be detrimental to her overall credibility. (Tr. 19). The ALJ afforded Dr. Bunting’s opinions
some but not substantial weight, based upon Plaintiff’s apparent provision of inconsistent
information and her failure to fully participate in the evaluation. (Tr. 20).
With respect to the opinions of the treatment providers at Vista Health, as noted earlier,
Plaintiff’s treatment at Vista Health occurred in 2006 and 2007, several years before the relevant
date of June 2, 2011. Nevertheless, it is clear that the ALJ considered all of the medical records
in this case, because he addressed the fact that Plaintiff reported to evaluators with the UAMS
Department of Pediatrics in 2006 that she had a history of special education classes in Math and
English and that she was retained in kindergarten, 1st grade, and 7th grade. (Tr. 16, 283) The ALJ
also discussed the 2006 diagnoses of Dr. Richard Lloyd, who was with Vista Health. (Tr. 17).
The ALJ also noted Plaintiff’s prior inconsistent statements to Dr. Lloyd and Dr. Bunting
regarding her terroristic threatening charge. (Tr. 18).
As an added note, Plaintiff’s daily activities support the ALJ’s RFC. She is able to take
care of her personal needs, prepare meals, do the laundry and dishes, go to church on a regular
basis, read, watch television, write, listen to music every day, and to play games on the computer.
(Tr. 220-223, 523). In addition, she reported smoking two cigarettes daily, and drinking a pot of
coffee and four 20-oz. bottles of Mountain Dew daily. (Tr. 523).
It is clear that the ALJ considered all of the medical records in this case as well as
Plaintiff’s complaints, and gave sufficient reasons for giving the weight he gave to the various
opinions. Consequently, the Court finds there is substantial evidence to support the ALJ’s RFC
Whether Plaintiff’s Impairments Meet or Equal a Listing:
Plaintiff argues that Plaintiff’s impairments meet or equal Listing 12.04. “The burden
of proof is on the plaintiff to establish that his or her impairment meets or equals a listing.”
Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “To meet a listing, an impairment must
meet all of the listing’s specified criteria.” Id. “To establish equivalency, a claimant ‘must
present medical findings equal in severity to all the criteria for the one most similar listed
impairment.’” Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir. 2010)(quoting from Sullivan v.
Zebley, 493 U.S. 521, 531 (1990)). “[W]hen determining medical equivalency, an impairment
can be considered alone or in combination with other impairments.” Carlson, 604 F.3d at 595.
The ALJ found that the severity of Plaintiff’s mental impairments did not meet or
medically equal the criteria of listings 12.04, 12.06, 12.08, and 12.09. (Tr. 13). He followed the
approach for evaluating Plaintiff’s alleged mental impairments at step three. See 20 C.F.R. §
One of the requirements to satisfy 12.04 is that there must be a marked restriction of
activities of daily living or in maintaining social functioning or in maintaining concentration,
persistence, or pace or repeated episodes of decompensation, each of extended duration. 20
C.F.R. Pt. 404, Subpt P, App 1, 12.04B. In his analysis, the ALJ found that in activities of daily
living, Plaintiff had a mild restriction; in social functioning, Plaintiff had mild difficulties; with
regard to concentration, persistence or pace, Plaintiff had moderate difficulties; and as for
episodes of decompensation, Plaintiff had no episodes of decompensation, which have been of
extended duration within the relevant timeframe. (Tr. 13-14). These findings are consistent with
the ALJ’s decision to give Dr. Brown’s opinion little weight, Dr. Bunting’s opinion some, but
not substantial weight, and the non-examining agency consultants’ opinions great weight,
although he further reduced Plaintiff’s RFC, based upon additional evidence received at the
hearing level. (Tr. 20).
Although Dr. Smith and Dr. Brown found Plaintiff had some severe limitations, after
reviewing the entire record as a whole, the ALJ gave more weight to the opinion of Dr. Bunting,
who pointed out numerous inconsistencies in Plaintiff’s statements to all of the providers and
concluded that Plaintiff’s statements regarding her history were unreliable. Although Dr.
Bunting found Plaintiff had little ability to cope with the typical mental/cognitive demands of
basic work-like tasks if she made her best effort, Dr. Bunting also found that Plaintiff had the
ability to attend and sustain her concentration on basic tasks; had some ability to sustain
persistence in completing tasks and to persist with things that interested her; and had some ability
to complete work-like tasks within an acceptable timeframe. (Tr. 523). The ALJ concluded that,
considering the evidence in the light most favorable to Plaintiff, Plaintiff had no more than
moderate difficulties in her ability to maintain concentration, persistence, or pace.
The Court finds there is substantial evidence to support the ALJ’s findings that Plaintiff
did not suffer from a marked restriction or difficulty in the relevant functional areas, and that she
did not have repeated episodes of decompensation.
With respect to Listing 12.05, relating to mental retardation, although in 2006, Plaintiff
was diagnosed with mild to moderate range of mental retardation (Tr. 283, 292), the medical
records during the relevant time period do not reflect such a diagnosis. Nor did Plaintiff allege
mental retardation in her application. Neither Dr. Bunting nor the state agency physicians
diagnosed Plaintiff with mental retardation, and Plaintiff did not produce any IQ scores to
substantiate a diagnosis of such.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s finding that Plaintiff’s mental impairment did not meet a Listing.
Whether the ALJ’s Decision is Supported by Substantial Evidence:
Plaintiff generally argues that there is no substantial basis for the ALJ’s findings at steps
three and five. However, based upon the discussion above, as well as the reasons given in
Defendant’s well-stated brief, the Court finds there is substantial evidence to support the ALJ’s
finding that Plaintiff has not been under a disability, as defined in the Act, since June 2, 2011,
the date the application was filed.
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 Plaintiff’s Complaint should be, and is hereby, dismissed with prejudice.
IT IS SO ORDERED this 6th day of May, 2014.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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