Buckner v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on February 27, 2014. (tg)

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

PLAINTIFF

v.

Civil No. 13-3042

CAROLYN W. COLVIN1, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kevin Crowden, 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, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act
(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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 his applications for DIB and SSI in October 18, 2010, alleging an onset

date of May 1, 2009, due to residual right ankle pain from an on-the-job injury and lower back
pain.

Tr. 130, 137, 161, 191-192.

His claims were denied both initially and upon

reconsideration. Tr. 74-80, 85-88. An administrative hearing was then held on November 8,
2011. Tr. 38-69. Plaintiff was both present and represented at that hearing.

1

Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael J. Astrue as the
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A the time of the administrative hearing, Plaintiff was 44 years old and possessed a
general equivalency degree. Tr. 37, 38, 132-138, 163, 201. He had past relevant work (“PRW”)
as a fast food worker and fast food cook. Tr. 25, 172-179.
On January 13, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, Plaintiff’s ankle fracture and degenerative disk disease (“DDD”) of the lumbar spine did
not meet or equal any Appendix 1 listing. Tr. 15-17. The ALJ determined that Plaintiff
maintained the residual functional capacity (“RFC”) to perform sedentary work, except “he can
occasionally climb, balance, stoop, kneel, crouch, and crawl. He can occasionally work
overhead.” Tr. 17. With the assistance of a vocational expert, the ALJ concluded Plaintiff could
perform work as a lampshade assembler, compact assembler, shoe buckler and lacer, ordnance
check weigher, nut sorter, and zipper trimmer. Tr. 21.
On January 24, 2013, the Appeals Council denied Plaintiff’s request for review. Tr. 1-6.
Subsequently, Plaintiff filed this case. ECF No. 1. This case is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF No. 8, 10.
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs and the ALJ’s opinion, and are repeated here only to the extent
necessary.
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
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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 we find it possible “to draw two inconsistent positions from the evidence,
and one of those positions represents the Secretary’s findings, we 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 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 his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
A.

The Evaluation Process:

The Commissioner’s regulations require him 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 his or her claim; (2) whether the claimant has a severe physical and/or
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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 his or her age, education, and experience. 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).
III.

Discussion:
Plaintiff contends that the ALJ erred in his determination of Plaintiff’s RFC and by

concluding that Plaintiff failed to comply with treatment. We disagree. After reviewing the
record in this case, we find that ALJ’s RFC determination is supported by substantial evidence.
Although Plaintiff contends that his impairments necessitated a sit/stand/walk option, this is not
substantiated by the record. The record does reveal Plaintiff’s complaints with regard to standing
and walking, but aside from his testimony, there are no medical records to document is alleged
difficulty sitting or need for a sit/stand/walk option. And, by definition, sedentary work requires
sitting most of the workday, with intermittent standing/walking to retrieve objects weighing 1
to 10 pounds. See 20 C. F. R. §§404.1567(a), 416.967(a); SSR 83-10.
In May 2009, Plaintiff was working on a roof when a limb fell on his ankle, resulting in
a severe bimalleolar ankle fracture with displacement of the fractured fragments and disruption
of the ankle mortise. Tr. 337-371, 520-525. Beginning in June 2009, Dr. Knox ordered physical
therapy, which Plaintiff was discharged from after only three appointments dues to
noncompliance. Tr. 313. His last appointment for treatment regarding his ankle fracture
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occurred in July 2009 and revealed that he was doing well with x-rays showing good alignment
and hardware placement. Tr. 233, 530. Plaintiff did not seek out further treatment until October
2010, at which time he stated that he could “not be up on his right leg for more than a couple of
hours without having severe pain.” Tr. 236-240. He admitted to a sedentary lifestyle, stating hat
he just sat around most days. Tr. 236. Plaintiff made no further complaints of ankle pain until
January 2011 when Dr. Knox prescribed Tramodol. Tr. 304-305. And, in February 2011, he
admitted to Dr. Bunting that he could drive 50-60 miles at a time and shop by himself. Tr. 282286. He also indicated that he spent his day listening to the radio, playing cards with his
girlfriend, and reading; all of which are sedentary activities.
The next documentation of ankle pain was made in November 2011. Tr. 563-564. See
Edwards v. Barnhart, 314 F.3d at 967 (holding that ALJ may discount disability claimant’s
subjective complaints of pain based on the claimant’s failure to pursue regular medical
treatment). While examinations did document some occasional tenderness and muscle spasm
in his lumbar spine, no range of motion deficits were noted and no restrictions were ever placed
on Plaintiff’s ability to sit.
Also weighing against Plaintiff’s argument is the fact that he started his own business in
March 2010, working at least 40 hours per week buying timber from landowners and selling the
logs to sawmill operators. Tr. 168, 177. He reportedly cut logs 15 to 20 hours per week for
approximately five months. Tr. 168-169. Plaintiff testified that he ended the business due to
ankle pain. Tr. 168. However, the medical evidence does not support a deterioration of his
condition on or about this time. And, as previous discussed, his treatment thereafter was

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inconsistent at best.

Accordingly, we find no error in the ALJ’s failure to include a

sit/stand/walk option in Plaintiff’s RFC determination.
We also find that the ALJ’s conclusion that Plaintiff was non-complaint with treatment
to be supported by the record.2 On July 16, 2009, Plaintiff was discharged from physical therapy
for non-compliance. Tr. 317. Treatment notes reveal that he attended only three sessions of
therapy. Although Plaintiff progressed well, he also appeared to be overzealous in his activities
and required instruction to stay within the parameters of his therapy.
Further, Plaintiff was suppose to present at Baptist Heath Medical Center on May 6,
2010, for evaluation of a suspected cardiac condition. He failed to do so because he was too
busy. Instead, Plaintiff presented on May 7, 2010, but checked himself out the following day
because he would not wait to be evaluated by the cardiologist. Tr. 245-274, 420-447, 538-561.
And, in April 2011, a doctor at Ozark Health Medical Center noted that, although Plaintiff had
been non-complaint with follow-ups concerning his cardiac symptoms. Tr. 499-517. At this
time, the doctor indicated that Plaintiff needed to be transported to Arkansas Heart Hospital via
ambulance for further evaluation. However, Plaintiff refused the transfer and signed himself out
against medical advice. Clearly, this is not the type of behavior one would expect of a disabled
individual.
Likewise, in January and February 2011, Plaintiff told Drs. Blair and Bunting that he was
not taking any medications for his chronic pain. Tr. 282-286, 304-305. See Dunahoo v. Apfel,

2

Plaintiff’s argument that the ALJ violated SSR-85-29 and 96-7p is misplaced in that the ALJ’s denial
of his claim was not based solely on his treatment non-compliance. The ALJ also correctly considered
Plaintiff’s alleged precipitating and aggravating factors, his medication and alleged side effects, his inconsistent
treatment, the objective medical evidence, and Plaintiff’s reported activities. Tr. 15-16, 18-20.

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241 F.3d 1033, 1038 (8th Cir. 2001) (holding that claimant’s failure to follow prescribed course
of treatment weighed against credibility when assessing subjective complaints of pain). Again,
this is not the behavior we would expect of someone suffering from disabling pain.
While we do agree that the record makes mention of the fact that Plaintiff was not able
to take Hydrocodone due to gastrointestinal related side effects, other pain medications were
available to him. Plaintiff was given Tramadol, Demerol, Celebrex, and Flexeril on separate
occasions. Tr. 236-240, 304-305, 326-330, 563-564. And, Plaintiff admitted to doing “well”
on Demerol and Phenergan. Tr. 19, 500, 563-561. He also admitted to taking both Aleve and
Tylenol with no reported side effects. See Hepp v. Astrue, 511 F. 3d 798, 807 (8th Cir. 2008)
(moderate, over-the-counter medication for pain does not support allegations of disabling pain).
Accordingly, we do not find that his inability to take Hydrocodone justifies his failure to take all
prescribed medications or seek out other prescription pain medications.
We can also discern no evidence to indicate that Plaintiff was ever refused medical
treatment or medication due to his financial status, or that he attempted to avail himself of the
treatment options available to indigent and low income individuals. Murphy v. Sullivan, 953
F.2d 383, 386-87 (8th Cir. 1992). Had Plaintiff’s financial status truly been a bar to his ability
to follow through with treatment and obtain medication, we believe this issue would have been
developed by the Plaintiff. Plaintiff was represented by counsel at the administrative hearing,
and does bear the burden of establishing justification for his failure to follow medical advice.
There is simply no evidence in the record that would have required the ALJ to develop the record
further in this regard. Accordingly, Plaintiff’s second argument is also without merit.

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V.

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 27th day of February 2014.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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