McCracken v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on March 13, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JAMES L. MCCRACKEN

PLAINTIFF

v.

CIVIL NO. 13-3114

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, James McCracken, 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”) under the provisions of Title II 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 his application for DIB on July 8, 2009, alleging an inability
to work since June 12, 2008, due to attention deficit disorder, bipolar disorder, and manic
depressive disorder. (Tr. 29, 179). For DIB purposes, Plaintiff retained insured status through
December 31, 2014. (Tr. 169, 514).
Plaintiff’s claims were denied initially and on reconsideration. (Tr. 67-71). An
administrative hearing was held on March 17, 2011, at which Plaintiff appeared with counsel and
testified. (Tr. 26-66). On April 7, 2011, the administrative law judge (“ALJ”) entered an
unfavorable decision. (Tr. 6-25). Plaintiff then requested a review by the Appeals Council of the
decision on April 18, 2011, which denied that request on October 19, 2011. (Tr. 1-5).

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Plaintiff subsequently appealed the decision to this Court. On July 23, 2012, the
Commissioner filed a motion requesting the case be remanded in order to remove erroneous
medical records and allow the ALJ to evaluate the medical evidence based on a corrected
administrative record. On August 8, 2012, Magistrate Judge James Marschewski entered a
decision remanding the case. McCracken v. Astrue, No. 11-cv-3132, 2012 WL 6642745 (W.D.
Ark. Aug 8, 2012).
A new administrative hearing was held on May 8, 2013, at which Plaintiff again appeared
with counsel and testified. (Tr. 531-563). By a written decision dated September 19, 2013, the
ALJ determined Plaintiff had the following severe impairments: “disorder of the shoulder,
obesity and mood disorder.” (Tr. 514). After reviewing all of the evidence presented, the ALJ
determined Plaintiff’s impairments did not meet or equal the level of severity of any impairment
listing. (Tr. 515-516). The ALJ found Plaintiff retained the residual functional capacity (“RFC”)
to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can
occasionally climb, balance, crawl, kneel, stoop, and crouch. He cannot work overhead
with his dominant arm. He can perform simple, routine, and repetitive tasks in a setting
in which interpersonal contact is incidental to the work performed; however, he should
not have contact with the general public. He can respond to supervision that is simple,
direct, and concrete.
(T. 515).
With the help of a vocational expert (“VE”), the ALJ determined Plaintiff could not
perform his past relevant work (“PRW”), but retained the capacity to perform the requirements
of representative occupations such as machine tender, assembler, and inspector. (Tr. 523-524,
718-721). The ALJ then found Plaintiff had not been under a disability during the relevant time
period. (Tr. 524).
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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 appeals briefs, and the
case is ready for decision. (Docs. 10, 11).
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. “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.” Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007). 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).
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 substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
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(8th Cir. 2001); 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 demonstrated 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. Titus v. Sullivan, 4 F.3d
590, 594 (8th Cir. 1993).
The Commissioner’s regulations require the application of a five-step sequential
evaluation process to each claim for disability benefits. 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 RFC. 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’s only argument on appeal is the ALJ’s RFC determination was in error because
the ALJ (1) did not find Plaintiff’s pain disabling and (2) chose to “ignore the assessments of his
own consultative examiners who have essentially told him this man is disabled.” (Doc. 10 at 1519).
A. Credibility Determination
The ALJ was required to consider all of 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
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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. It is well established that “credibility is primarily a matter for the ALJ to decide.”
Edwards, 314 F.3d at 966. The ALJ is entitled to make a factual determination that a claimant’s
subjective complaints are not credible when contrary objective medical evidence exists. Ramirez,
292 F.3d at 581.
The ALJ addressed the Polaski factors in the written decision, but discounted Plaintiff’s
allegations of disabling pain. Among the many reasons in the record that weighed against
Plaintiff’s credibility, the ALJ identified the following inconsistencies: (1) Plaintiff’s father
reported Plaintiff lived an active and social life and was capable of performing chores like
mowing the yard; (2) Plaintiff did not seek treatment for many of his conditions; (3) Plaintiff
failed to take his medications consistently; and (4) Plaintiff was considered an unreliable
informant by a consulting physician. (Tr. 518-520, 522). These were valid reasons for
discounting Plaintiff's claims and were consistent with the record. See e.g., Wildman v. Astrue,
596 F.3d 959, 968-69 (8th Cir. 2010) (stating ALJ appropriately considered claimant’s
non-compliance with prescribed treatment in determining credibility); see also Casey v. Astrue,
503 F.3d 687, 696 (8th Cir. 2007) (deferring to the ALJ’s credibility determination where the
objective medical evidence did not support claims of physical impairments).
While it appears Plaintiff has some medical problems, Plaintiff’s central argument is his
failure to hold a steady job is proof he is not capable of working.1 (Doc. 10 at 16). A poor work
1

Plaintiff argument is summarized as, “this man’s working history which demonstrates
that his jobs are, almost without exception, of a duration that not exceeding a few
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history, however does not indicate Plaintiff is disabled and tends to weigh against his credibility.
“A lack of work history may indicate a lack of motivation to work rather than a lack of ability.”
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001); see also Woolf v. Shalala, 3 F.3d
1210, 1214 (8th Cir. 1993) (stating a claimant’s credibility is lessened by a poor work history).
The Court also notes Plaintiff received unemployment benefits through 2009 and into
2010, even though he alleged an onset date of June 12, 2008. (Tr. 52-53, 434). Accepting
unemployment benefits is an assertion of the ability to work and inconsistent with a claim of
disability. Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998). Plaintiff also reported he was
working in construction in 2009. (Tr. 461). Following the ALJ’s first decision, Plaintiff went to
work at Micro Plastics and then moved to North Dakota to work at a gas plant. (Tr. 554-557,
699). An intention or ability to return to work tends to indicate a person’s pain is not so great as
to be disabling. See Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)(stating a plaintiff who
expresses a specific plan to work suggests his pain is not disabling).
Finally, it is significant that between the end of 2010 and the ALJ’s decision in
September 2013, Plaintiff did not establish consistent medical treatment with any physician or
mental health provider. Failure to seek treatment for an allegedly disabling impairment is
inconsistent with a claim of disability. See Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995).
Plaintiff’s failure to seek any consistent medical treatment during the relevant time period
coupled with his sporadic work attempts indicates Plaintiff’s conditions are not as serious as
alleged.

months only serves to confirm the assessments of Drs. Hudson and Bunting.” (Doc.
10 at 16).
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Based on the foregoing, the Court finds the ALJ’s credibility determination was based
on substantial evidence.
B. RFC
RFC is the most a person can do despite that person’s limitations and is assessed using
all relevant evidence in the record. 20 C.F.R. § 404.1545(a)(1). This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his
limitations. 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).
A claimant’s RFC is a medical question, therefore, an ALJ’s RFC determination must be
supported by medical evidence that addresses the claimant’s ability to function in the workplace.
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). The ALJ is required to set forth with specifics
a claimant’s limitations and to determine how those limitations affect a claimant’s RFC. Lewis
v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
Records from the Mountain Home Christian Clinic show Plaintiff was prescribed
Cymbalta and Xanax in July 2009. (Tr. 406). On March 17, 2010, Plaintiff visited Health
Resources of Arkansas to establish mental health treatment. (Tr.454-459). On the diagnostic
form, Plaintiff indicated his depression and anxiety had responded to his newly prescribed
medications. (Tr. 456). Plaintiff never followed through with treatment after his initial visit. (Tr.
460).
Plaintiff was next examined by Dr. Robert Hudson, a State psychiatrist, on October 12,
2009. (Tr. 429-432). Dr. Hudson opined Plaintiff was limited by his purported homelessness and
the absence of a supportive social circle. (Tr. 431). Dr. Hudson also opined Plaintiff had no
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significant limits on his ability to communicate; no significant mental or cognitive limits on basic
work-like tasks; and no significant problems persistence or completion, but some problems with
the ability to attend and sustain concentration on basic tasks. (Tr. 431).
On October 29, 2009, Dr. Jay Rankin, a State non-examining physician, completed a
mental RFC Assessment. (Tr. 436-452). Dr. Rankin remarked on the absence of complaints by
Plaintiff to his physicians at the Mountain Home clinic and Dr. Hudson’s opinion that Plaintiff
had no severe limitations. (Tr. 438). Dr. Rankin opined Plaintiff is “able to perform work where
interpersonal contact is incidental to the work performed, e.g., assembly work; complexity of
tasks is learned and performed by rote, few variables, little judgment; supervision required is
simple, direct and concrete (unskilled).” (Tr. 438-439). Dr. Winston Brown affirmed Dr.
Rankin’s opinion on May 26, 2010. (Tr. 470).
Dr. Nancy Bunting, a State psychiatrist, examined Plaintiff on May 19, 2010. (Tr. 460465). According to Dr. Bunting, Plaintiff was superficially cooperative, but became defensive
when questioned about his employment and substance abuse history. (Tr. 461-462). Dr. Bunting
compared Plaintiff’s responses to the information in his medical history and identified more than
a dozen inconsistencies. (Tr. 464). Based on her concerns about Plaintiff’s veracity, she opined
he was a “guarded and unreliable informant.” (Tr. 465).
On June 6, 2010, Dr. Bill Payne, a State consulting physician, submitted a physical RFC
Assessment and opined Plaintiff’s RFC was light. (Tr. 475-481).
On January 30, 2013, Plaintiff reported to the ER with a jaw fracture after he fell out of
his truck and cracked his chin on the pavement. (Tr. 559, 733, 805). Plaintiff reported his

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previous bone injuries, PTSD, and anxiety as resolved during his intake. (Tr. 734). He was
treated and released with a prescription for penicillin and Vicodin. (Tr. 731).
On July 24, 2013, Plaintiff was examined by Dr. Shannon Brownfield, a State consulting
physician. (Tr. 813-817). Dr. Brownfield reported Plaintiff’s only current medication was
ibuprofen 500mg- twice daily and opined Plaintiff had a limited ability to lift/stoop/carry/ kneel
or climb stairs, based on moderate to severe pain in Plaintiff’s right upper extremity and knee.
(Tr. 813, 817).
The ALJ discussed in detail the weight he assigned to all the evidence in the record. He
gave great weight to the opinions of Dr. Hudson, Dr. Rankin, and Dr. Payne, and gave some
weight to the opinions of Dr. Bunting and Dr. Brownfield. (Tr. 520-522). Contrary to Plaintiff’s
assertion, the opinions of Dr. Brownfield and Dr. Hudson were fully addressed by the ALJ and
reflected in the RFC assessment. The ALJ’s RFC determination included restrictions to
accommodate Plaintiff’s difficulty with social interactions, concentration problems, and his
diminished exertional capacity from knee and shoulder problems.
As the ALJ noted, Plaintiff’s activities, conservative pain management, lack treatment,
and the record as a whole did not support the majority of Plaintiff’s complaints. See e.g., Gates
v. Astrue, 627 F.3d 1080, 1083 (8th Cir. 2010). Additionally, when Plaintiff took his
medications, they appeared to control his mental conditions. (Tr. 456, 495-496). Conditions
controlled by treatment or medications are not disabling. See Renstrom v. Astrue, 680 F.3d 1057,
1066 (8th Cir. 2012).
Based on the foregoing, the Court finds the ALJ’s RFC assessment is supported by
substantial evidence.
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IV. Conclusion:.
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 13th day of March, 2015.
/s/ Mark Ford
HON. MARK FORD
UNITED STATES MAGISTRATE JUDGE

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