Brown v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 16, 2015. (src)

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

PLAINTIFF

V.

NO. 14-3080

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION

Plaintiff, Christine Brown, 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 claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) under the provisions of Titles II and 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 filed her current applications for DIB and SSI on March 2, 2012, alleging an

inability to work since November 23, 2010, due to bipolar disorder, diabetes, fibromyalgia,
neuropathy, and her right shoulder. (Tr. 88-94, 95, 128). An administrative hearing was held
on July 25, 2013, at which Plaintiff appeared with counsel, and she and her husband testified.
(Tr. 1523-1564).

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By written decision dated October 15, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
diabetes mellitus, heart disease and hypertension, asthma, obesity, personality disorder, mood
disorder, fibromyalgia, and residuals of shoulder replacement. (Tr. 17). 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. 17). The ALJ found Plaintiff retained
the residual functional capacity (RFC) to:
Perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except occasional postural activities, no overhead reaching with nondominant upper extremity, avoid exposure to pulmonary irritants, unskilled
with only incidental contact with co-workers, supervisor, or the public.
(Tr. 19). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to perform her past relevant work, but that
there were other jobs Plaintiff would be able to perform, such as small products assembler,
small production machine operator, and small products inspector. (Tr. 22-23).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which considered additional information, and denied that request on July 2, 2014. (Tr. 3-7).
Subsequently, Plaintiff filed this action. (Doc. 1).

This case is before the undersigned

pursuant to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs, and the
case is now ready for decision. (Docs. 10, 11).
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:

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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 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)(D). A Plaintiff must show that her disability, not simply her
impairment, has lasted for at least twelve consecutive months.

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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 her 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 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 RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following issues in this matter: 1) The ALJ failed to perform a

proper credibility determination; and 2) The ALJ’s RFC determination failed to properly
consider the vocational impact of Plaintiff’s mental impairments. (Doc. 10).
A.

Credibility Analysis:

Plaintiff argues that the ALJ simply made the boilerplate statement that he must make
a credibility determination, and that was essentially the entire extent of it. 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,
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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).
In his decision, the ALJ first stated that when statements about the intensity,
persistence, or functionally limiting effects of pain or other symptoms are not substantiated
by the objective medical evidence, he must “make a finding on the credibility of the
statements based on a consideration of the entire case record.” (Tr. 20). In addition, the ALJ
concluded in his decision that after careful consideration of the evidence, Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, but that Plaintiff’s statements concerning the intensity, persistence and limiting
effects of the symptoms were not entirely credible for the reasons explained in his decision.
(Tr. 20). The ALJ discussed Plaintiff’s daily activities, noting that she had mild restriction in
those activities. (Tr. 18). He observed that Plaintiff was able to maintain her household, do
chores such as washing dishes, sweeping, vacuuming, doing laundry, preparing meals, taking
care of her small child, driving a car, shopping for groceries, and handling her bank accounts.
(Tr. 18). In addition, during the relevant time period, Plaintiff smoked up to one pack of
cigarettes daily (Tr. 587, 791), received manicures every other week for a period of time (Tr.
574, 581), went fishing on occasion (Tr. 571), birthday shopped for her daughter (Tr. 563),
got her nose pierced (Tr. 559), walked with her daughter and had dinner over at her
neighbors (Tr. 505), went for walks when she was bored (Tr. 468), went to church regularly
(Tr. 120), and went to Dollar Tree and bought necklaces (Tr. 1331).

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The ALJ also recognized Plaintiff’s pain, noting that Plaintiff had been treated for
diabetes mellitus, heart disease and hypertension, asthma, obesity, personality disorder, mood
disorder, fibromyalgia, and frozen shoulder, which required shoulder replacement. He noted
that Plaintiff had been followed at the various clinics, was seen by specialists, and did well
post operatively from her shoulder replacement. (Tr. 20).

The ALJ also discussed the

opinion of non-examining consultant, Dr. Shannon Brownfield, the mental evaluation of
Nancy Bunting, Ph.D., and the psychological examination by Vann Smith, Ph.D. (Tr. 20).
The ALJ gave good reason for discounting Dr. Smith’s opinion, and found the other opinions
supported his RFC.
The Court also notes that Plaintiff continued to smoke cigarettes after it was
recommended that she quit, and in spite of the fact that she had asthma. Plaintiff was also
not always compliant with her medications, citing financial difficulties and being unable to
afford the medication. However, Plaintiff was somehow able to afford cigarettes and
manicures. “Failure to follow a prescribed course of remedial treatment without good reason
is grounds for denying an application for benefits.” Brown v. Barnhart 390 F.3d 535, 540541 (8th Cir. 2004)(citations omitted).

It is noteworthy that Janice Fry, LAC, one of

Plaintiff’s counselors at Families, Inc., reported that “Client is smoking quite heavily, despite
financial problems and being barely able to pay necessary bills and buy essentials such as
toilet paper, shampoo and laundry soap. Client verbalized there was not enough money for
gas.” (Tr. 517).
In her evaluation, Dr. Bunting noted that although Plaintiff’s presenting complaint
was that she had lost jobs because of her temper and walking off, such was not the case with
the 2004 job, her last job, or her longest job that ended in 1995. (Tr. 779).
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The Court also notes that on August 2, 2013, Plaintiff reported that her husband
would be mad at her if she found a job, because he wanted her to wait for her disability. (Tr.
1152). Plaintiff said she would lose all her food stamps if she did get disability, so she would
not be any better than before. (Tr. 1152).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
B.

RFC Determination:

Plaintiff argues that the ALJ made no correlation between the findings and statements
in the medical records that support his conclusions. 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. “The ALJ is permitted to base its RFC
determination on ‘a non-examining physician’s opinion and other medical evidence in the

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record.’” Barrows v. Colvin, No. C 13-4087-MWB, 2015 WL 1510159 at *15 (quoting from
Willms v. Colvin, Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013).
As stated earlier, the ALJ found that Plaintiff had the RFC to perform sedentary work
with certain postural and environmental restrictions, and could do no overhead reaching with
her non-dominant upper extremity. (Tr. 19).

In making this determination, the ALJ

considered the objective medical evidence, including the opinions of Plaintiff’s treating and
non-treating physicians. The ALJ found that his RFC was supported by Dr. Brownfield’s
assessment, the longitudinal medical records, and the state agency physicians who concluded
she could perform the full range of light work except for reaching. The ALJ also considered
the opinion of Dr. Vann Smith, but discounted his opinion and gave several appropriate
reasons for discounting his opinion. (Tr. 21).
The ALJ also correctly analyzed Plaintiff’s mental impairments. He found she had
mild restriction in activities of daily living, moderate difficulties in social functioning,
moderate difficulties with regard to concentration, persistence or pace, and no episodes of
decompensation, which have been of extended duration. (Tr. 18-19). In addition, the ALJ
limited Plaintiff to unskilled work with only incidental contact with the co-worker’s
supervisors, or the general public.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC determination.
C.

Hypothetical Question:

At the hearing, the ALJ presented the following hypothetical question to the VE:

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Q: Mr. Spragins, I’d like you to assume a hypothetical person, younger
individual, high school education, cannot return to any past relevant work no
transferable skills. In the first hypothetical the person can do sedentary work
as defined by the regulation, occasional climb, balance, crawl, kneel, stoop,
crouch. Cannot do overhead work with the non-dominant upper extremity,
must avoid concentrated exposure to pulmonary irritants. Can perform simple,
routine, repetitive tasks in a setting where interpersonal contact is incidental to
the work performed. Can work under supervision that is simple, direct, and
concrete. And my question is, would there be work in the economy this person
could do?
A: Okay, make sure. Sedentary, no overhead with non-dominant, and avoid
concentrated exposure to pulmonary.
Q: Pulmonary. And also can occasional all the postural.
A: Yes.
Q: And then unskilled with incidental contact.
A: …Person – those limitations could do a small production machine
operator…
Individual could be a small product assembler…Individual could be a small
product inspector…
(Tr. 1560-1561).
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 the
jobs of small products assembler, small production machine operator, and small products
inspector. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational
expert based on properly phrased hypothetical question constitutes substantial evidence).
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IV.

Conclusion:
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 16th day of November, 2015.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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