Tillisch v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 23, 2014. (rg)

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

JENNIFER V. TILLISCH

PLAINTIFF

v.

CIVIL NO. 13-3054

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jennifer Virginia Tillisch, 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) benefits 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).
I.

Procedural Background:
Plaintiff protectively filed her current application for SSI on January 28, 2011, alleging

an inability to work due to arthritis of the knees; a stretched optical nerve; anxiety; depression;
a personality disorder; a dysthymic disorder; flexed ribs; bilateral carpal tunnel syndrome; and
two herniated discs. (Tr. 116, 167). An administrative hearing was held on November 30, 2011,
at which Plaintiff after being informed of her right to representation, testified without the
assistance of a representative. (Tr. 27-67, 114).

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By written decision dated December 13, 2011, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe.
(Tr.14). Specifically, the ALJ found Plaintiff had the following severe impairments: borderline
personality disorder with cluster B traits. 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. 14). 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 is limited to work involving simple,
routine, and repetitive tasks; simple, work-related decisions, with few, if any,
work place changes; and no more than incidental contact with co-workers,
supervisors, and the general public.
(Tr. 15). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a housekeeper, an assembler, and a machine tender. (Tr. 21-22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 26, 2013. (Tr. 1-4). 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. 11, 12).
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.
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
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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)(c). 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 has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
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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 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.
III.

Discussion:
Plaintiff argues the following issue on appeal: 1) the ALJ erred in failing to find Plaintiff

had severe physical impairments; 2) the ALJ erred in failing to develop the record by sending
Plaintiff to a consultative physical examination; and 3) the ALJ’s decision was not supported by
substantial evidence.
A.

Plaintiff’s Impairments:

At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing she suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
Plaintiff argues that the ALJ erred in determining that Plaintiff had no severe physical
impairments for the time period in question. A review of the relevant medical evidence revealed
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that Plaintiff sought treatment for bilateral knee pain on January 24, 2011. (Tr. 290). Plaintiff
was noted to ambulate freely at that time, and Plaintiff had reported she had walked to the
hospital from her home.

Plaintiff was diagnosed with a right knee sprain and it was

recommended that she remain non-weight bearing until she saw an orthopedist. The record
revealed that Plaintiff did not seek treatment for her knee pain again during the relevant time
period. Plaintiff was also noted to show no signs of physical pain during her evaluation with Dr.
W. Charles Nichols in March of 2011. (Tr. 310).
On April 1, 2011, Plaintiff sought treatment for right hand pain. (Tr. 314). At that time,
Plaintiff denied experiencing numbness or weakness. X-rays of Plaintiff’s right hand and wrist
revealed no acute fracture. (Tr. 324). The record failed to reveal that Plaintiff sought treatment
for any type of hand pain again during the relevant time period.
On April 19, 2011, Plaintiff sought treatment for neck pain and a headache. (Tr. 326).
At that time, Plaintiff was noted to have full range of motion of her neck. Plaintiff was also
noted to have a normal back inspection and normal range of motion in her extremities. Plaintiff
was diagnosed with a myofascial sprain. Plaintiff did not seek treatment for neck pain or a
headache again during the relevant time period.
In determining that Plaintiff did not have a severe physical impairment, the ALJ also
relied upon the opinions of Drs. Bill F. Payne and Lucy Sauer, both non-examining medical
consultants, who, after reviewing the record opined that Plaintiff did not suffer from a severe
physical impairment. After reviewing the entire record, the Court finds substantial evidence to
support the ALJ’s determination that Plaintiff did not have a severe physical impairment during
the relevant time period.
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B.

Fully and Fairly Develop the Record:

While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel,
208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is
necessary for an informed decision), the record before the ALJ contained the evidence required
to make a full and informed decision regarding Plaintiff’s capabilities during the relevant time
period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop
record fully and fairly to ensure it includes evidence from treating physician, or at least
examining physician, addressing impairments at issue).
C.

Subjective Complaints and Credibility Analysis:

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 her pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of her 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 United States Court of Appeals for the Eighth Circuit 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).
After reviewing the administrative record, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the record
revealed that Plaintiff completed a Function Report on February 18, 2011, wherein she indicated
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that she was able to take care of her personal needs unless she was experiencing pain; to help
with laundry; to help feed, walk and bathe her dog; and to spend time reading, writing, painting,
watching movies, sewing, knitting, crocheting, doing word searches, and doing crossword
puzzles. (Tr. 151-158). Plaintiff reported she was able to visit with people, go visit others if she
had a ride, talk on the telephone and to text. Plaintiff indicated that she was able to lift twentyfive pounds, and walk one-half of a mile before she needed to rest. In March of 2011, Plaintiff
reported to Dr. Nichols that she paid for items by “doing odd jobs here and there,” watching her
friend’s child, or cleaning her friend’s house. (Tr. 309).
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that
lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or
hospitals does not support plaintiff’s contention of financial hardship). The record further
revealed that Plaintiff was able to come up with the funds to support her smoking habit during
the relevant time period.
With regard to the testimony of Plaintiff's significant other and friends, as well as letters
from friends, the ALJ properly considered this evidence but found it unpersuasive. This
determination was within the ALJ's province. See Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir.
1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court

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concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
D.

The ALJ’s 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 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.
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical records
when he determined Plaintiff could perform a full range of work at all exertional levels with
nonexertional limitations. The Court finds, based upon the well-stated reasons outlined in the
Defendant’s brief, that Plaintiff’s argument is without merit, and there was sufficient evidence
for the ALJ to make an informed decision. Plaintiff's capacity to perform this work is also
supported by the fact that the medical evidence does not indicate that Plaintiff's examining
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physicians placed restrictions on her activities that would preclude performing the RFC
determined. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed
restrictions militates against a finding of total disability). Accordingly, the Court finds there is
substantial evidence of record to support the ALJ’s RFC findings.
E.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that the
vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff's impairments did not preclude her from performing light, unskilled work as a
housekeeper, an assembler, and a machine tender. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
IV.

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 23rd day of June, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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