Brandon v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on August 7, 2015. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CRYSTAL K. BRANDON
Civil No. 3:14-cv-03051-MEF
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
Plaintiff, Crystal K. Brandon, 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 her claim for child’s insurance benefits (“CIB”) as a disabled adult and for supplemental
security income (“SSI”) under Title II and XVI of the Social Security Act (hereinafter “the Act”),
42 U.S.C. §§ 402(d)(1), 1382c(a)(3)(A), and 1382c(a)(3)(C). 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
On February 2, 2012, an application for supplemental security income was protectively filed
on behalf of the Plaintiff, who was then a child under the age of 18, and a claim for childhood
insurance benefits as a disabled adult, alleging an onset date of October 17, 2011, due to back
problems, anger issues, ADD, ADHD, depression, and social problems. (T. 167-170, 187-189, 190)
Her claims were denied initially on June 11, 2012, and upon reconsideration on July 13, 2012. (T.
81-83, 84-87, 90-91, 92-93) Plaintiff requested an administrative hearing (T. 101-102), and the
hearing was held on May 22, 2013, before the Hon. Bill Jones, Administrative Law Judge (“ALJ”).
(T. 35-71) Plaintiff was present and represented by her attorney, Frederick S. Spencer. Also present
at the hearing were Sarah A. Moore, an impartial Vocational Expert (“VE”), and Alexandra Neal,
the Plaintiff’s friend and witness. (T. 35, 37)
Plaintiff was 19 years old at the time of the hearing. (T. 38) Plaintiff attended school, in
regular classes, until the 10th grade. She then stopped going to school “because people were being
rude to me,” and she was home-schooled so she “wouldn’t be around anyone.” She has not yet
obtained a GED. (T. 39, 43-44) She has past relevant work (“PRW”) experience as a personal care
assistant (“PCA”) and as a fast food worker. (T. 38, 221) Plaintiff last worked about two weeks
before the hearing. (T. 38) She had worked as a PCA for a little over one year, but she was just
“stressed out” and decided not to do that anymore. (T. 38) She was working five days per week, for
a total of 27 hours per week which was all the hours her employer would give her. (T. 39, 55) She
testified that she worked because “I have to support myself somehow and make money.” (T. 41, 56)
She described being “stressed out” as “I was getting angry and just a little bit of anxiety with the way
my patients were treating me . . . fear of my patients being rude to me and getting me stressed out
. . . it just made me not want to go to work . . .” (T. 41-43) Plaintiff’s aunt, with whom she lived, was
“a little bit upset” with her for quitting her job and, with some encouragement from her aunt,
Plaintiff admitted that she was looking around for another job. (T. 58)
In a Decision issued on July 15, 2013, the ALJ’s findings included: (1) that before attaining
age 18, Plaintiff had severe impairments of adjustment disorder with mixed anxiety and depression,
mathematics disorder, abandonment issues, ADHD, bipolar disorder, and generalized anxiety
disorder; (2) that before attaining age 18, Plaintiff did not have an impairment or combination of
impairments that functionally equaled the listings; (3) that Plaintiff was not disabled prior to
reaching age 18; (4) that Plaintiff has not developed any new impairment(s) since attaining age 18;
(5) that since attaining age 18, Plaintiff has continued to have a severe impairment or combination
of impairments; (6) that since attaining age 18, Plaintiff has not had an impairment or combination
of impairments that meets or medically equals a listed impairment; (7) that since attaining age 18,
Plaintiff has the residual functional capacity to perform a full range of work at all exertional levels,
but with the non-exertional limitations of performing work limited to simple, routine, and repetitive
tasks involving only simple, work-related decisions, with few, if any, workplace changes, and no
more than incidental contact with co-workers, supervisors, and the general public; (8) that since
attaining age 18, and considering Plaintiff’s age, education, work experience, and residual functional
capacity, jobs have existed in significant numbers in the national economy that Plaintiff has been
able to perform; (9) that with regard to her application for SSI, Plaintiff has not been under a
disability since she attained age 18 on March 26, 2012 through the date of the ALJ’s Decision; (10)
that with regard to Plaintiff’s application for child’s insurance benefits, Plaintiff has not been under
a disability from the alleged onset date of October 17, 2011 though the date of the ALJ’s Decision.
Plaintiff appealed this decision to the Appeals Council (T. 7), but said request for review was
denied on March 21, 2014. (T. 1-6) Plaintiff then filed this action on May 12, 2014. (Doc. 1) This
case is before the undersigned pursuant to the consent of the parties. (Doc. 7) Both parties have filed
appeal briefs (Docs. 11 and 12), and the case is ready for decision.
II. Applicable Law
This Court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.
Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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 Court must affirm the
ALJ’s decision. Id.
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), 1382c(a)(3)(D). A plaintiff must show that her disability, not
simply her impairment, has lasted for at least twelve consecutive months. To entitled to child’s
insurance benefits, the claimant must have a disability that began before the attainment of age 22.
42 U.S.C. § 402(d).
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 his or 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 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)(4), 416.920(a)(4).
Only if he reaches the final stage 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(a)(4)(v), 416.920(a)(4)(v).
The Court must determine whether substantial evidence, taking the record as a whole,
supports the Commissioner’s decision that with regard to Plaintiff’s application for SSI that Plaintiff
was not disabled before or after attaining age 18, and that with regard to Plaintiff’s claim for child’s
insurance benefits, that Plaintiff was not disabled from the alleged date of onset on October 17, 2011
through the date of the ALJ’s Decision on July 16, 2013. Plaintiff raises three points on appeal,
which can be summarized as follows: (A) the ALJ erred in his RFC determination; (B) the ALJ erred
in finding that Plaintiff’s back pain was not severe; and, (C) a general argument that the ALJ’s
decision denying benefits is not support by substantial evidence. (Doc. 11, pp. 7-12) Each issue is
addressed in turn.
A. No Error in RFC Determination
The ALJ determined that Plaintiff has the RFC to perform a full range of work at all
exertional levels, but with the non-exertional limitations of performing work limited to simple,
routine, and repetitive tasks involving only simple, work-related decisions, with few, if any,
workplace changes, and no more than incidental contact with co-workers, supervisors, and the
general public. (T. 22-24, 26-29) Plaintiff argues that the ALJ’s RFC determination is not supported
by substantial evidence of record. Specifically, Plaintiff asserts that the ALJ failed to account for
Plaintiff’s reaction to work-related stress in accordance with SSR 11-2P and SSR 85-15, and that
the RFC made no provisions for the “consistently low GAG (sic) scores documented in the course
of psychiatric treatment.” (Doc. 11, pp. 7-10) The Court disagrees.
It is well settled that the ALJ “bears the primary responsibility for assessing a claimant’s
residual functional capacity based on all relevant evidence.” Roberts v. Apfel, 222 F.3d 466, 469 (8th
Cir. 2000). RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
416.945(a)(1). A disability claimant has the burden of establishing his or her RFC. See Masterson
v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). “The ALJ determines a claimant’s RFC based on all
relevant evidence in the record, including medical records, observations of treating physicians and
others, and the claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir. 2004); Guilliam v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
416.945(a)(3). 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.
1. Work Related Stress
Plaintiff argues that her job history is “littered with work cessations or terminations and
unsuccessful work attempts that ended due to [her] inability to handle work[’]s stress.” (Doc. 11, p.
8) Unless “littered” can be construed to mean the same thing as “a few,” this is a mischaracterization of the evidence of record. In a Disability Report dated April 9, 2012, Plaintiff states
that, “I have never worked.” (T. 191) A Work History Report dated June 30, 2012 lists only two fast
food jobs, but it does not give the dates “worked from” or “worked to,” so it cannot be determined
how long Plaintiff worked at those two jobs. (T. 221-228) Plaintiff’s testimony does not indicate the
duration of those two jobs either, just that, “I feel like every time I get a job, I may do good at it for
a while, but then I might start to let it get to me and I feel like I won’t continue it, and I’m scared that
I’m just going to continue to do that all my life.” (T. 55) Plaintiff also testified that she had been
working as a personal care assistant and had that job for “a little over a year.” (T. 38-39) She got that
job upon turning age 18, and she worked five days a week for all the hours (27 per week) that the
employer would let her work. (T. 55) She quit the job approximately two weeks before the hearing
because she was “stressed out” and decided “not to do that one anymore.” (T. 38) She described
being “stressed out” as “getting angry and just a little bit of anxiety” with the way her patients were
treating her. (T. 41) She stated that she worked because she had to support herself. (T. 56) She
admitted that her aunt, with whom she lived, was upset that she quit her job, and that she had been
looking around for another job. (T. 58) Such evidence does not support her contention that her work
history is “littered” with work cessations or terminations and unsuccessful work attempts, nor does
it support a conclusion that her mental impairments, which she vaguely describes as feeling “stressed
out” and “a little bit of anxiety” prevent her from working.
Plaintiff cites SSR 11-2p to support her argument that the ALJ erred in assessing her workrelated stress in determining her RFC. (Doc. 11, p. 8) SSR 11-2p indicates that consideration should
be given to impairment-related limitations created by a person’s response to the demands of workrelated stress when assessing RFC (¶ II(E)(2)), and that regardless of whether the work was SGA,
information about how well a young adult performed in job placements can help to assess how the
young adult functions - noting that “a young adult who performed OJT placements successfully may
have a good ability to respond appropriately to supervision.” (¶ II(B))
Plaintiff also cites SSR 85-15 in support of her claims. That Regulation provides, in part,
that determining whether individuals with mental illness will be able to adapt to the demands or
“stress” of the workplace is often “extremely difficult,” and the intent of the “Stress and Mental
Illness” section of the Regulation is to “emphasize the importance of thoroughness in evaluation on
an individualized basis.” Any impairment-related limitations created by an individual’s response to
the demands of work must be reflected in the RFC assessment.
Here, a review of the record shows that the ALJ took into account the reports and opinions
of Plaintiff’s treating physicians, the opinions of consultative physicians, and the testimony of
Plaintiff and her friend, and he considered the combination of all the Plaintiff’s impairments in
making his RFC determination. See Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010). In doing so,
the ALJ concluded that Plaintiff retained the residual functional capacity to perform a full range of
work at all exertional levels, but with non-exertional limitations of performing work limited to
simple, routine, and repetitive tasks involving only simple work-related decisions, with few, if any,
workplace changes, and with no more than incidental contact with co-workers, supervisors, and the
general public. There is substantial evidence to support the ALJ’s RFC determination.
In September 2011, Plaintiff presented to Dayspring Behavioral Health Services in Mountain
Home, Arkansas for an intake evaluation. Thomas Zurkowski, M.D., conducted a psychiatric
evaluation of Plaintiff, who complained of symptoms of anxiety, depression and anger. Plaintiff
reported “a lot of conflict with mother’s finacé who is very controlling and wants [Plaintiff’s]
mother to terminate responsibility of [Plaintiff].” Plaintiff reported that she had to assume
responsibility of the home, including control of her child support payments, cooking, and
maintaining the home instead of her mother being in control. (T. 270) Dr. Zurkowski noted that
Plaintiff “is a knowledgeable person and may have bipolar, and/or ADHD and OCD which she has
characteristics of all of these.” (T. 271) (Emphasis added.) Outpatient care with medication
management was recommended, and all medical necessity indicators (i.e., social/relationship
problems, family issues, and stressful life circumstances) were documented as “moderate.” (T. 268)
A GAF of 45 was noted at intake on September 2, 2011, and a GAF of 50 was noted a few weeks
later on September 22, 2011. Plaintiff was started on Ritalin (20 mg b.i.d.). (T. 271-272)
On October 20, 2011, Plaintiff’s appearance was neat, clean and appropriate; her speech was
normal; her mood was normal, irritable; her affect was appropriate; her thought was intact, and she
was oriented x 3; her social skills were adequate; her sleep was decreased; and, she was cooperative.
She reported medication compliance with no side effects. Dr. Zurkowski commented, “Crystal is
diagnosed with ADHD and Bipolar which may be there but she is not a classic case,” and he
prescribed a reduced dose of Ritalin (10 mg t.i.d.) and Trileptal. (T. 263)
On December 14, 2011, Plaintiff was seen by her family physician, Ronald Bruton, M.D.,
for headaches and an outbreak of facial acne. Dr. Bruton noted that “[s]he uses her cell phones a lot
and other electronics, keeps her head bent over watching these,” and he advised her to “lay off the
electronic devices for a while.” Dr. Bruton documented that “[s]he also takes Ritalin for ADD, but
she has stopped that,” “her school work is still doing well,” “I think we can discontinue the Ritalin
altogether,” and that “[s]he is stable off the medication.” (T. 286)
On March 23, 2012, Dr. Zurkowski noted Plaintiff’s appearance was again neat, clean and
appropriate; her speech was normal; her mood was normal, anxious; her affect was appropriate; her
thought was intact, and she was oriented x 3; her social skills were adequate; her sleep was normal;
and, she was cooperative but withdrawn. She reported medication compliance with no side effects.
She expressed some jealousy regarding her boyfriend, and she was reassured and told not to be
concerned. She was started on Vistaril. (T. 262)
On May 24, 2012, Plaintiff saw Nancy A. Bunting, Ph.D., a consultative examiner, for a
mental status evaluation. Dr. Bunting observed that Plaintiff’s family situation (a neglectful,
nonfunctional mother and threatened abandonment) was likely the cause of her anger, anxiety and
depression, which seemed “like fairly understandable responses to her situation.” Dr. Bunting saw
“NO basis for a diagnosis of bipolar disorder here.” (T. 298) She also reported that “ADHD is a rule
out diagnosis as there is no evidence for that here. . .” (T. 299) Dr. Bunting diagnosed Plaintiff with
adjustment disorder with mixed anxiety and depression, and a mathematics disorder. She assessed
a GAF of 50-60. (T. 298) Dr. Bunting opined that Plaintiff can do all her self-care skills (which
Plaintiff subsequently reported having no problems with in her Function Report dated June 30, 2012)
(T. 232). She noted that Plaintiff had just gotten her driver’s license and drives; she shops by herself;
she does regular chores like washing dishes, doing laundry, sweeping, vacuuming, cleaning and
cooking; she takes care of a cat and two hamsters; and, she spends her time watching television,
listening to the radio and music, using the X-Box all night for 8 hours, and chatting on the internet.
(T. 298) She documented that Plaintiff communicated and interacted in a socially adequate,
intelligible and effective manner. She opined that Plaintiff has some ability to cope with the typical
mental/cognitive demands of basic work-like tasks, to attend and sustain her concentration on basic
tasks, to sustain persistence in completing tasks, and to complete work-like tasks within an
acceptable time frame. (T. 299-300)
A Psychiatric Review Technique was completed by a non-examining reviewer, Jon Etienne
Mourot, Ph.D., on June 1, 2012. Dr. Mourot indicated that Plaintiff’s medical impairments were not
severe (T. 303), and he diagnosed a mathematics disorder (T. 304) and an adjustment disorder (T.
306). All Paragraph B Criteria of the Listings were noted to be mild, with no episodes of
decompensation. (T. 313) Dr. Mourot noted “[n]o evidence of severe cognitive/mental impairment
of adaptive functioning for occupational purposes,” and stated “impairment not severe.” (T. 315) Dr.
Mourot’s opinions were affirmed on review by Sheri L. Simon, Ph.D. on July 13, 2012. (T. 343)
In a follow up visit on June 7, 2012, Dr. Zurkowski confirmed that Plaintiff was working
with a counselor, Joyce Parker, “and is down to taking only the Vistaril/hydroxyzine for sleep and
is now living with her Grandmother.” Dr. Zurkowski also reported that “[s]he does not think she
needs any medication, otherwise.” If an impairment that can be controlled by treatment or
medication, it cannot be considered disabling. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
2004) (internal citation omitted). Dr. Zurkowski advised that he would “encourage Joyce to follow
up with her and eval whether she needs further psychotherapy.” (T. 326) There is no evidence of
record that Plaintiff sought any further psychotherapy or treatment for any mental impairment. See
Banks v. Massanari, 258 F.3d 820, 825-26 (8th Cir. 2001)(ALJ properly discounted claimant’s
complaints of disabling depression as inconsistent with daily activities and failure to seek additional
During the relevant time period, the evidence before the Court demonstrates a relatively short
history of treatment for mental impairments (from September 2, 2011 through June 7, 2012) arising,
it appears to the undersigned, from temporary situational difficulties associated with a neglectful and
non-functioning mother and her threatening fiancé. In light of the evidence of record, including the
findings and opinions of Plaintiff’s treating physicians, and based on the history of effective
medication treatment and psychotherapy (which her physicians discontinued), and further based upon
the evaluation of Plaintiff’s adaptive functioning by a consultative examiner, there is substantial
evidence to support the ALJ’s RFC conclusion that, “although the claimant may have some problems
functioning[,] the objective evidence of record does not support any marked impairment in adaptive
functioning[,] and her symptoms do not preclude her from engaging in simple, repetitive, routine
tasks where contact is incidental.” (T. 22-23)
2. GAF Scores
Plaintiff also argues that the ALJ erred in not giving her global assessment of functioning
(“GAF”) scores more evidentiary weight. In essence, Plaintiff claims that her GAF scores in the 4550 range evidence serious symptoms or serious impairment in social, occupational or school
functioning. Upon a review of the record as a whole, the Court cannot agree.
The GAF score is a subjective determination that represents “the clinician’s judgment of an
individual’s overall level of functioning.” Jones v. Astrue, 619 F.3d at 973. The failure to reference
a GAF score is not, standing alone, sufficient ground to reverse a disability determination. Id., citing
Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). Quoting from Kornecky v.
Comm’r of Soc. Sec., 167 Fed.Appx. 496, 511 (6th Cir. 2006), the Court in Jones stated,
“[a]ccording to the [Diagnostic and Statistical Manual’s] explanation of the [Global Assessment
Functioning] scale, a score may have little or no bearing on the subject’s social and occupational
functioning . . . [W]e are not aware of any statutory, regulatory, or other authority requiring the
ALJ to put stock in a [Global Assessment Functioning] score in the first place.” (Emphasis added.)
The Court went on to state that the Commissioner “has declined to endorse the [GAF] score for ‘use
in the Social Security and [Supplemental Security Income] disability programs,’ and has indicated
that [GAF] scores have no ‘direct correlation to the severity requirements of the mental disorders
listings,’” and that denials of disability benefits where applicants had GAF scores of 50 or lower
have been affirmed. Jones, 619 F.3d at 974-75.
We recognize, as the Commissioner points out (Doc. 12, p. 13), that the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (“DSM–V”) was released in 2013, replacing
the DSM–IV. The DSM–V has abolished the use of GAF scores to “rate an individual’s level of
functioning because of ‘its conceptual lack of clarity’ and ‘questionable psychometrics in routine
practice.’” Alcott v. Colvin, No. 4:13–CV–01074–NKL, 2014 WL 4660364, at *6 (W.D. Mo. Sept.
17, 2014) (citing Rayford v. Shinseki, 2013 WL 3153981, at *1 n. 2 (Vet.App.2013) (quoting the
DSM–V)). However, because the DSM–IV was in use at the time the medical assessments were
conducted in this case, the Global Assessment of Functioning scores remain relevant for
consideration in this appeal. Rayford, 2013 WL 3153981, at *1 n. 2.
Examples given in the DSM-IV, p. 34, of “serious symptoms” include suicidal ideation,
severe obsessive rituals, or frequent shoplifting, while examples of “serious impairment in social,
occupational, or school functioning” include having no friends and an inability to keep a job. In the
present case, Plaintiff’s only suicide attempt, and her last suicidal ideation, was at age 15. She was
hospitalized overnight and released after holding a knife to her wrist - leaving an imprint - but not
cutting. (T. 265-266, 295) The record contains no evidence of any severe obsessive rituals, frequent
shoplifting, or other problems with the law. The record shows, however, that Plaintiff does have
friends, including a boyfriend, that she socializes with (T. 61, 63), that she chats on the internet (T.
299), and that she held a job as a personal care assistant for over a year before quitting the job a
couple of weeks before the hearing. (T. 38, 41-42) Such evidence supports the ALJ’s determination
that Plaintiff’s GAF scores “are inconsistent with the evidence of record.” (T. 23) The ALJ noted
that “they [the GAF scores] are not of much significance in determining disability” (T. 23), and this
is consistent with the Eighth Circuit authority cited above. The ALJ did not err by discounting the
Plaintiff’s GAF scores in considering her functional ability. See Wright v. Colvin, 789 F.3d 847, 855
(8th Cir. 2015), in which the Court upheld the ALJ’s failure to give weight to the GAF score, citing
65 Fed. Reg. 50746, 50764-65 (GAF scores have no direct correlation to the severity requirements
in our mental disorders listings).
B. No Error in Step Two Analysis
The ALJ did not find that Plaintiff’s reported back pain was a severe impairment. (T. 16, 21,
25) Plaintiff contends this was prejudicial error as the ALJ did not consider this impairment in his
determination of Plaintiff’s RFC. (Doc. 11, p. 11) Plaintiff relies on her testimony that she suffers
back pain, that it is aggravated by moving much or standing for very long, and that she has seen
physicians on two occasions - on September 12, 2011 and in July, 2012 - when she complained of
back pain and received prescription medications. (Doc. 11, pp. 11-12) For the reasons discussed
below, the ALJ’s determination that Plaintiff’s back pain is not severe is supported by substantial
An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work activities. Bowen v.
Yuckert, 482 U.S. 137, 153 (1987). If the impairment would have no more than a minimal effect on
the claimant’s ability to work, then it does not satisfy the requirement of step two. Page v. Astrue,
484 F.3d 1040, 1043 (8th Cir. 2007). It is the claimant’s burden to establish that her impairment or
combination of impairments are severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
While severity is not an onerous requirement for the claimant to meet, see Hudson v. Bowen, 870
F.2d 1392, 1395 (8th Cir. 1989), it is also not a toothless standard, and the Eighth Circuit Court of
Appeals has upheld on numerous occasions the Commissioner’s finding that a claimant failed to
make this showing. See, e.g., Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007); Page, 484 F.3d at
1043-44; Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003); Simmons, 264 F.3d at 755;
Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997); and, Nguyen v. Chater, 75 F.3d 429, 431
(8th Cir. 1996).
Plaintiff testified that she is only pain free in her back a couple of hours per day; that a lot
of movement or standing a lot bothers her back; and, that she can’t stand for more than thirty
minutes. (T. 47) On September 12, 2011, Plaintiff saw Lonnie Robinson, M.D., with complaints of
“back and abdominal pain for the past few weeks.” (T. 287) An x-ray taken that day was negative.
(T. 291) Dr. Robinson felt the problem was musculoskeletal, and he prescribed an anti-inflammatory,
Meloxicam (30 tablets and one refill), and an antibiotic, Macrobid. (T. 287) Dr. Robinson did not
recommend any restrictions or limitations of Plaintiff’s activities. (T. 287) Plaintiff’s alleged back
pain appears to have resolved, because in follow-up visits to Dr. Robinson’s office in December,
2011 and January, 2012, Plaintiff voiced no complaints of back pain, and Dr. Robinson did not
renew the prescriptions for Meloxicam or Macrobid. (T. 283-286)
There is no evidence of any further treatment for back pain until July 19, 2012, when Plaintiff
saw Mary Burr, APN, with complaints of low back pain which, inconsistent with her report to Dr.
Robinson on September 12, 2011, she stated “started two years ago.” (T. 321) APN Burr referred
Plaintiff to physical therapy for evaluation of core muscle strengthening, suggestive of a finding that
Plaintiff was out of condition. (T. 322) A muscle relaxant, Flexeril, was prescribed to be taken as
needed. (T. 322) APN Burr did not recommend any restrictions or limitations of Plaintiff’s activities.
(T. 322) There is no record of Plaintiff following through with the referral for physical therapy, nor
any medical evidence that she sought any further treatment for her alleged back pain. See Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (an ALJ may properly consider a claimant’s noncompliance with a treating physician’s directions).
The ALJ considered the minimal and conservative treatment Plaintiff received for her
complaints of back pain, and he correctly determined that the medical evidence of record did not
support Plaintiff’s claim of disabling back pain. (T. 17) If an impairment can be controlled by
treatment or medication, it cannot be considered disabling. See Brown v. Barnhart, 390 F.3d 535,
540 (8th Cir. 2004); Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009); and, see also Smith v.
Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (treating physician’s conservative treatment was
inconsistent with plaintiff’s allegations of disabling pain). A mere diagnosis is not sufficient to prove
disability, absent some evidence to establish a functional loss resulting from that diagnosis. See
Trenary v. Bowen, 898F.2d 1361, 1364 (8th Cir. 1990). There is no medical evidence in the record
to establish a functional loss resulting from Plaintiff’s alleged back pain.
The Court also notes that despite Plaintiff’s statement to APN Burr that she “could not keep
a job due to back pain in her mid-back when she has been on her feet for more than 20 minutes” (T.
320-321), this would have been at a time when Plaintiff was working as a PCA, and Plaintiff
continued to work as a PCA for another nine to ten months before quitting the job two weeks before
the hearing on May 22, 2013. See Dodson v. Chater, 101 F.3d 533, 534 (8th Cir. 1996) (ALJ
properly concluded that, since claimant had been able to work while having the exact same
impairments she claimed made her unemployable, she was less than fully credible regarding her
inability to work); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (holding that working after
the onset of an impairment is some evidence of an ability to work). It is also noteworthy that Plaintiff
did not quit her job as a PCA due to her alleged back pain, but because she felt “stressed out,” had
“a little bit of anxiety” and just decided not to do that job anymore. (T. 38) See, e.g., Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001) (finding the claimant did not lose his job because of his
disability, he lost it because his position was eliminated).
Considering the evidence as a whole, the ALJ’s finding that Plaintiff’s alleged back pain was
not severe is supported by substantial evidence. The Court, therefore, finds that the ALJ’s step two
determination is supported by substantial evidence and should be affirmed.
C. Sufficient Evidence Supports the ALJ’s Denial of Benefits
Plaintiff’s final point on appeal is a generic argument that if the ALJ’s decision denying
benefits was not supported by substantial evidence, the case must be reversed or remanded. Plaintiff
asserts that “[a]ny objective consideration of the evidence in this case provides persuasive evidence
detracting from the ALJ’s decision,” and that “[t]here is simply no substantial basis for a
determination that the claimant is not disabled under the definition of the Act.” (Doc. 11, p. 12) For
the reasons discussed above, the Court finds that substantial evidence does support the ALJ’s denial
of benefits in this case.
Having carefully reviewed and considered the entire record, the Court finds that substantial
evidence supports the ALJ’s Decision denying Plaintiff CIB and SSI benefits. The ALJ’s Decision
should be, and it hereby is, affirmed. Plaintiff’s Complaint should be dismissed with prejudice.
DATED this 7th day of August, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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