Turner v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 27, 2015. (jn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DANNY LEE TURNER, II
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Danny Lee Turner, II, 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 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 his application for SSI on July 20, 2011, alleging an inability
to work since October 15, 2009, due to bi-polar disorder, schizophrenia, depression, diabetes,
back injury, anxiety, and mood control issues. (Tr. 134-141, 179, 160). For SSI purposes, the
relevant time period begins the date the application is filed. Cruse v. Bowen, 867 F.2d 1183,
1185 (8th Cir. 1989); 20 C.F.R. § 416.203(b). Accordingly, the relevant time period in this case
is from July 20, 2011 to March 27, 2013, the date of the ALJ’s decision. An administrative
hearing was held on August 8, 2012, at which Plaintiff appeared with counsel, and he and his
wife testified. (Tr. 25-73).
By written decision dated March 27, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - diabetes
mellitus, obesity, and mood disorder. (Tr. 14). 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
perform light work as defined in 20 CFR 416.967(b) except that the
claimant is limited to performing work where interpersonal contact is
routine but superficial, complexity of tasks is learned by experience,
tasks have several variables and require judgment within limits, and
supervision required is little for routine while detailed for non-routine
(Tr. 15-16). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be able to perform his past relevant work as a wire worker.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 10, 2014. (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. 11, 13).
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 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)(D). A Plaintiff must show that his disability, not simply his 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 his 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 his 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 his RFC. See McCoy v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir.
1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues in this matter: 1) Whether there is substantial
evidence to support the ALJ’s decision that Plaintiff is not disabled; and 2) Whether the ALJ
erred in failing to assign proper weight to the opinion of Plaintiff’s treating physician, Dr.
Charles Horton. (Doc. 11).
Relevant Time Period:
As stated earlier, SSI benefits are not payable for a period prior to application, and
Plaintiff’s application was filed on July 20, 2011. Cruse, 867 F.2d at 1185. Accordingly, the
relevant time period begins on July 20, 2011. Records and medical opinions from outside the
insured period can only be used in “helping to elucidate a medical condition during the time for
which benefits might be rewarded.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)(holding
that the parties must focus their attention on claimant’s condition at the time she last met insured
status requirements). The Court has reviewed and considered all of the records contained in the
RFC Determination and Weight Given to Dr. Horton’s Opinion:
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 his 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 this case, the records reveal that Plaintiff first saw Dr. Horton on April 25, 2007, for
headaches (Tr. 458), and Dr. Horton wanted to get x-rays of Plaintiff’s spine. Said x-rays were
obtained, and no acute changes were seen in the cervical spine except there was a loss of
alignment, compatible with muscle spasm. (Tr. 247). The thoracic spine x-rays were negative
as visualized and there were no acute changes seen in the lumbar spine. (Tr. 247). On May 16,
2007, Dr. Horton reported that Plaintiff was doing much better as far as the back pain was
concerned and the medicine seemed to help him. (Tr. 462).
On November 7, 2008, Plaintiff was assessed with ulnar neuropathy of his right forearm
and lipoma of the right forearm. (Tr. 471). Plaintiff also suffered with headaches in 2008. (Tr.
261, 266, 466, 475). On April 25, 2010, Plaintiff presented to Dr. Horton for a physical for his
insurance, and had no complaints. (Tr. 480). Dr. Horton assessed Plaintiff with migraines,
hyperlipidemia, sleep apnea, chronic low back pain, and hyperglycemia. (Tr. 481). Dr. Horton
noted that Midrin seemed to work well for his headaches, and put Plaintiff on Flexeril as needed
for muscle spasms when they occurred in his back. (Tr. 482). Plaintiff followed up with Dr.
Horton on May 10, 2010, and Dr. Horton noted that he thought the Topamax had helped his
headaches, and that his symptoms of his back were “under control with the present dose of
Flexeril that he is on.” (Tr. 486).
On June 9, 2010, Plaintiff reported to Dr. Horton that he was having mood swings and
anger episodes. (Tr. 490). Dr. Horton believed Plaintiff had some sort of atypical depression,
and started Plaintiff on Prozac. (Tr. 491). When he was seen by Dr. Horton on June 28, 2010,
Plaintiff advised Dr. Horton he was feeling better on Prozac and had more energy, and had less
problems with mood swings. (Tr. 494). Dr. Horton increased the dosage of Prozac and also
started him on Metformin. (Tr. 496). By December 8, 2010, Plaintiff was again having more
difficulties with mood swings, and asked for a referral to psychiatric services. (Tr. 313). On
January 24, 2011, Plaintiff reported to Dr. Horton that his mood swings were much improved
on Celexa and Marinol. (Tr. 317). On April 28, 2011, Plaintiff reported to Dr. Horton that he
was doing a lot better on the medicines but did get almost “zoned out” or like a zombie when
he took the Marinol. (Tr. 332). On May 17, 2011, Plaintiff saw Dr. Rene Charles Duffourc for
Behavioral Health intake evaluation. (Tr. 293). During the evaluation, Plaintiff acknowledged
that he was not compliant in taking his medication. (Tr. 294). He was then taking Marinol and
Tranxene prescribed by Dr. Horton. (Tr. 294). Plaintiff was assessed as follows:
Economic problems and problems with primary support group
51-60 moderate symptoms
( Tr. 295). On June 30, 2011, Plaintiff again saw Dr. Duffourc and reported a big improvement
in his anger after switching to Lamictal. (Tr. 300).
Thereafter, beginning on July 20, 2011, the date the relevant time period begins, Plaintiff
was seen by Dr. John Nash, who noted Plaintiff’s blood sugar problem. (Tr. 340). Dr. Nash
noted that Plaintiff “always eats a lot.” (Tr. 340). He diagnosed Plaintiff with diabetes without
complication type II, uncontrolled, phimosis, and advised Plaintiff to cut back on the volume to
food. “He eats too much.” (Tr. 342).
On September 7, 2011, non-examining consultant, Dr. Jonathan Norcross, completed a
Physical RFC Assessment. (Tr. 351-358). He found that Plaintiff would be able to perform
medium level work, but should avoid even moderate exposure to hazards. (Tr. 352, 355).
On September 7, 2011, non-examining consultant, Jon Etienne Mourot, Ph.D., completed
a Mental RFC Assessment. (Tr. 362-364). Dr. Mourot found that Plaintiff was able to perform
work where interpersonal contact was routine but superficial; complexity of tasks was learned
by experience; tasks had several variables and required judgment within limits; and supervision
required was little for routine, but detailed for non-routine, tasks. (Tr. 364). Dr. Mourot also
completed a Psychiatric Review Technique form, finding Plaintiff had moderate degree of
limitations in maintaining social functioning and mild degree of limitation in activities of daily
living, and in maintaining concentration, persistence, or pace, and had no episodes of
decompensation, each of extended duration. (Tr. 376).
Plaintiff saw Dr. Horton on October 10, 2011, needing something for muscle relaxation
for his chronic low back pain. (Tr. 422). Dr. Horton noted that he had been relatively stable on
the recent medications of Lamictal and Klonopin. He also noted that Plaintiff’s blood sugar at
times got high, but Plaintiff did not check it very often. (Tr. 422). Plaintiff again saw Dr.
Horton on December 8, 2011, after slipping and falling on some ice. (Tr. 542). Plaintiff
complained of pain in his right knee and hip and tightness in his back. (Tr. 542). He was able
to walk without any problem, and did not have any bruising or significant swelling, and there
was no palpable injury or tenderness to the patella itself. Plaintiff also had good range of motion
of his right knee and hip. (Tr. 544). Dr. Horton continued:
As far as his other problems are concerned, he was doing okay on the
Klonopin and the Lamictal and I refilled those. I think the Klonopin
helped with his back pain more as well and I think it would be wise of
him to get back on those medicines. They helped his attitude and helped
his mood swings and his insurance will be changing here next month, so
hopefully he is going to get back in to see the psychiatrist or where he
can get in and be seen again and get those medicines done regularly.
On March 28, 2012, Plaintiff complained to Dr. Horton of shoulder pain on his left side.
(Tr. 557). Dr. Horton reported that he had a fairly good range of motion, but when he tried to
abduct, it hurt. Plaintiff was reported as stable on his present psychiatric medications. (Tr. 558).
Dr. Horton injected his shoulder with Lidocaine, and Plaintiff had a normal range of motion,
active and passive, after the injection. (Tr. 560).
At the hearing held on August 8, 2012, Plaintiff testified that he was relying primarily
on his treating family doctor to continue his medication and that he was not controlling his
diabetes very well. (Tr. 32-33). He stated that until a year prior, he struggled maintaining his
anger and composure, but he then changed his medications, which were helping some. (Tr. 45).
After the hearing that was held before the ALJ, Dr. Horton completed a Physical Medical
Source Statement dated September 4, 2012, wherein he opined that Plaintiff had severe
limitations and was incapable of even “low stress” work. (Tr. 566-569). Dr. Horton also wrote
a letter dated September 6, 2012, wherein he opined that due to his multiple medical problems,
his medical problems counteracting with each other and between his emotional state, impatience,
physical limitations and diabetes, he felt Plaintiff was disabled and unable to work an eight hour
job under any circumstances. (Tr. 565).
In his opinion, the ALJ recognized that Dr. Horton’s opinion limited Plaintiff to a less
than sedentary exertional level along with numerous other limitations which essentially
prevented Plaintiff from engaging in regular full time competitive work or its equivalent. (Tr.
18). The ALJ recognized that Dr. Horton was a treating physician, but afforded Dr. Horton’s
opinion little weight “due to the fact that the evidence, including records involving Dr. Horton,
fails to provide support for Dr. Horton’s opinion.” (Tr. 18). The ALJ concluded that there was
no evidentiary support for the extent of difficulties opined by Dr. Horton and that there was not
“one piece of evidence” besides Dr. Horton’s opinion of any symptoms that would prevent
Plaintiff from performing light work as previously performed. (Tr. 18). The Court agrees with
the ALJ that during the relevant time period, there is no other evidence that would support the
extent of limitations offered by Dr. Horton.
“A treating source's opinion is to be given
controlling weight where it is supported by acceptable clinical and laboratory diagnostic
techniques and where it is not inconsistent with other substantial evidence in the record.”
Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.2003), paraphrasing 20 C.F.R. § 404.1527(d)(2).
When a treating source's opinion is not controlling, it is weighed by the same factors as any other
medical opinion: the examining relationship, the treatment relationship, supporting explanations,
consistency, specialization, and other factors. See 20 C.F.R. § 404.1527(d); Lehnartz v.
Barnhart, 142 Fed.Appx. 939, 940 (8th Cir. 2005). In this case, Dr. Horton’s records do not
reflect the extent of limitations he set forth in his medical source statement. In addition, Dr.
Horton’s letter stating that Plaintiff was disabled is not persuasive, and is not entitled to
deference because it invades the province of the Commissioner to make the ultimate disability
determination. House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC determination as well as the weight he afforded Dr. Horton’s opinion.
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 Eighth Circuit has 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).
Based upon the record as a whole, the Court finds there is substantial evidence to support
the ALJ’s credibility analysis.
Hypothetical Question to VE:
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 him from performing his past relevant work as a
wire worker during the time period in question. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
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 27th day of May, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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