Baklund v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 24, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Commissioner of the Social Security Administration
Plaintiff 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).
Plaintiff protectively filed her applications for DIB and SSI on July 3, 2008, alleging an
inability to work since May 22, 2008, due to stomach/abdominal pain, abdominal adhesions,
edema in both legs and feet, fibromyalgia, depression, anxiety, panic attack, fatigue, and memory
loss. (Tr. 131, 135). For DIB purposes, Plaintiff maintained insured status through September
30, 2012. (Tr. 51). An administrative hearing was held on August 17, 2009, at which Plaintiff
appeared with counsel, and she and a co-worker testified. (Tr. 6-41).
By written decision dated January 4, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe - mood
disorder and fibromyalgia. (Tr. 51). However, after reviewing all of the evidence presented,
he 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. 51). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can occasionally climb, balance, crouch, stoop, kneel and crawl. The claimant
has moderate difficulties in maintaining concentration, persistence, and pace; the
claimant is moderately limited in her ability to understand, remember, and carry out
detailed instructions and appropriately respond to usual work situations and routine work
changes. Moderately limited means there is more than a slight limitation, but the person
can perform in a satisfactory manner. The claimant can do work in which interpersonal
contact is incidental to the work performed; complexity of tasks is learned and performed
by rote with little judgment and few variables; and supervision is simple, direct, and
(Tr. 53). With the help of a vocational expert (VE), the ALJ determined that Plaintiff could
perform other work as a hand packager, sewing machine operator, or poultry processing worker.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on July 21, 2010. (Tr. 1-3). 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. 9, 10).
Plaintiff was born in 1964 and received her GED. (Tr. 131, 142). For several years
prior to the alleged onset date of May 22, 2008, Plaintiff suffered with and was treated for
migraine headaches, lower abdominal pain, and depression. (Tr. 220-221, 230, 232-233, 239-
249, 257-268, 273, 275, 308-309, 324, 338-341, 348, 415-419, 433-435, 438, 441-442, 446, 453,
465-466, 469, 483, 488).1 Plaintiff underwent an abdominal hysterectomy in 1989 (Tr. 223), and
continued to suffer with abdominal adhesions thereafter. She has had more than three and less
than ten surgeries to remove the adhesions, which continue to reoccur. (Tr. 13-14). Upon
undergoing a colonoscopy in 2007, Plaintiff was diagnosed with diverticulitis. (Tr. 269).
On January 21, 2008, Plaintiff was seen by Dr. James W. Norys, at the Fayetteville
Diagnostic Clinic, when she complained of recurrent abdominal pain and recurrent headaches.
(Tr. 340-341). Dr. Norys’ impression was “recurrent abdominal pain unclear etiology.” (Tr.
341). On January 21, 2008, Dr. Norys saw Plaintiff and noted that Plaintiff’s recurrent
headaches seemed to be worse on hormone replacement therapy. (Tr. 339). Dr. Norys also noted
that Plaintiff had a history of fibromyalgia. He suggested a trial of Lyrica 50 mg., twice daily
for her fibromyalgia, hoping that it would also help with her abdominal discomfort. (Tr. 339).
On February 21, 2008, Dr. Norys gave the following impression:
1. Migraine headache - will increase Lyrica and continue vitamin B6, continue Imitrex have given her a prescription for Darvon
2. Fibromyalgia, improved - will continue Lyrica and regular exercise
3. Vitamin D deficiency - will continue replacement
On April 5, 2008, Plaintiff presented herself to Dr. William J. McGowan, and reported
feeling as though she was having worsening headaches. (Tr. 348). Plaintiff reported she
previously took Lyrica and did not think it helped, but stopped taking it three to four weeks prior
to the visit, and thought it may well have helped her after all. (Tr. 348). She also stated that she
All of the records in the transcript date from January 13, 1986 forward.
took Imitrex for her headaches, and that in the past they improved. (Tr. 348). Dr. McGowan
gave the following impression: “Recurrent headache in this 41 year old with history of recurrent
pelvic pain, adhesions, and migraine headaches, as well as fibromyalgia syndrome, as well as
long-term history of some anxiety.” (Tr. 348). He was going to restart Plaintiff on Lyrica and
graduate her back to 75 tid, and start her on Cymbalta 30 mg., increasing to 60 mg. gradually.
On September 9, 2008, a Mental Diagnostic Evaluation was performed for the Social
Security Administration by Terry L. Efird, Ph.D. (Tr. 361-364). Plaintiff denied any history of
psychiatric treatment, although she did report being prescribed Cymbalta for about two to three
months, but stopped taking the medication about one month previously, secondary to being unable
to afford it. She also stated that she was unsure if it was helpful. (Tr. 361-362). Plaintiff reported
she had been living with her boyfriend for the previous three and a half years, and endorsed the
ability to perform basic self-care tasks satisfactorily. (Tr. 362). She also endorsed the ability to
primarily perform household chores satisfactorily. (Tr. 362). Dr. Efird reported that Plaintiff’s
primary reason for applying for disability benefits was reportedly secondary to physical problems.
(Tr. 362). Dr. Efird diagnosed Plaintiff with:
Major depressive disorder, moderate
Anxiety disorder NOS
(Tr. 362). Dr. Efird reported that Plaintiff endorsed the ability to drive unfamiliar routes, to shop
independently, to handle personal finances satisfactorily, and to perform most activities of daily
living satisfactorily. (Tr. 364). She also reportedly went to a friend’s home to help care for her
friend’s mother about once a week. Dr. Efird found that Plaintiff had the capacity to perform
basic cognitive tasks required for basic work -like activities; had no remarkable problems with
attention/concentration; and generally completed tasks assigned during the evaluation. (Tr. 364).
She was also found to have no remarkable problems with persistence.
On September 11, 2008, a Psychiatric Review Technique form was completed by Kay M.
Gale. (Tr. 378-391). Dr. Gale found that Plaintiff suffered from Affective Disorder and AnxietyRelated Disorder NOS. (Tr. 378-383). She also found that Plaintiff had a mild degree of
limitation in restriction of activities of daily living and difficulties in maintaining social
functioning; a moderate degree of limitation in difficulties in maintaining concentration,
persistence, or pace; and had no episodes of decompensation, each of extended duration. (Tr.
388). Dr. Gale found that Plaintiff seemed capable of unskilled work. (Tr. 390).
Dr. Gale also prepared a Mental RFC Assessment on September 11, 2008. (Tr. 392-395).
She found that Plaintiff was not significantly limited in sixteen out of twenty categories, and was
only moderately limited in four out of twenty categories. (Tr. 392-393). She found that Plaintiff
was able to perform work where interpersonal contact was incidental to the work performed, e.g.
assembly work; where the complexity of tasks was learned and performed by rote, with few
variables and where little judgment was used; and where supervision required was simple, direct
and concrete. (Tr. 394).
On September 11, 2008, a Physical RFC Assessment was completed by Jim Takach. (Tr.
370-377). Dr. Takach found that Plaintiff could: occasionally lift and/or carry (including upward
pulling) 20 pounds; frequently lift and/or carry(including upward pulling) 10 pounds; stand
and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday; sit (with
normal breaks) for a total of about 6 hours in an 8-hour workday; and push and/or pull (including
operation of hand and/or foot controls) unlimited, other than as shown for lift and/or carry. (Tr.
371). He found that from the available medical records, Plaintiff retained the ability to function
with light work limits, and could occasionally climb ramps, stairs, ladders, ropes, and scaffolds,
and occasionally balance, stoop, kneel, crouch, and crawl. (Tr. 372). No manipulative,
communicative or environmental limitations were established. (Tr. 372-374).
In a Disability Report-Adult, dated July 3, 2008, Plaintiff reported that the illnesses that
limited her ability to work were stomach/abdominal pain, abdominal adhesions, edema in both
legs and feet, fibromyalgia, depression, anxiety, panic attacks, fatigue, memory loss, and severe
migraine headaches. (Tr. 135). She further reported that the adhesions, fibromyalgia, and
migraine headaches would not allow her to sit, stand, lift, drive, carry, concentrate or focus on job
responsibilities or other simple household tasks, such as as dishes, laundry and meals. She
reported that the edema would not allow her to stand or walk, and that she must elevate her legs
to reduce the swelling and pain. (Tr. 135). She also reported that with her migraine headaches,
she must lie down, rest in a dark room with no noise, with medication. (Tr. 135). She stated that
the pain from everything affected her memory and concentration and ability to focus and complete
tasks. At that time, she was taking Amitrex, Cymbalta, Darvon, and Lyrica. (Tr. 141).
In a Function Report - Adult, dated July 21, 2008, Plaintiff reported that when she had a
migraine, she would go to a dark room and be in bed all day. She reported that it was hard to
stand in the shower for very long, and if the water hit her stomach, it caused pain. She reported
that she cooked simple meals, could not stand to cook a full meal, did the laundry, light
housework, dusted, vacuumed when she could, and tried to do a little every day. (Tr. 148). She
also reported that she drove a car and shopped for food once a week. (Tr. 149).
In an October 22, 2008 Function Report - Adult, Plaintiff reported that the pain was more
intense and often, and the migraines were more frequent. (Tr. 162). She reported it was difficult
at times to dress due to the pain in her stomach and fibromyalgia. She reported that she did not
do much house cleaning any more, and that it was painful to drive. She reported that her stomach
pain was getting worse and the scar tissue had built back up again. She also reported that the
fibromyalgia pain was “all the time.” (Tr. 169).
In a Disability Report - Appeal, dated September 30, 2008, Plaintiff reported that she
could not afford to see a doctor or get her medication refilled, and was in constant pain, especially
without her medicine. (Tr. 174). In a November 10, 2008 Disability Report - Appeal, Plaintiff
reported taking the following medicines: Amitrex; Cymbalta; Darvon; Exedrin Migraine;
Ibuprofen; Lyrica; and Vitamin D. (Tr. 182). Again, Plaintiff reported that she had increased
stomach pain and headaches, and was not able to afford the doctor or medications. (Tr. 184).
At the August 17, 2009 hearing, Plaintiff stated that the major impairments that kept her
from being able to work were abdominal adhesions, migraines, fibromyalgia, and swelling of her
feet. (Tr. 12). She also testified that her doctor had increased her dose of Lyrica and “maybe it
will get better.” (Tr. 18). She stated that the fibromyalgia limited her ability to stand, sit and
walk, depending on the day and how medicated she was. She said that she took medication before
the hearing, “so I don’t feel really bad, I can’t think really well but I don’t feel real bad.” (Tr. 18).
She also stated that her feet and legs did not swell real often, and that she had been put on all
different kinds of medication for her depression and “I really don’t want to do that again.” (Tr.
19-21). She stated that she never had a panic attack at work, did her housework only when she
felt up to it, dusted, put dishes in the dishwasher, wiped the counters, and did “normal
housework.” She stated that the doctor said her Vitamin D level was very low, which could be
causing part of the pain, so she was being given vitamins. (Tr. 28). Plaintiff most recently was
working at the Cazort Law Firm a few hours a week, and Brenda Sands, a co-worker, stated that
after Plaintiff worked for six months, she started missing a lot of work, many times she was out,
and that her absences got worse. (Tr. 33). Plaintiff was let go for missing work, and was unable
to do the job because of the illnesses, but recently she went back to work at the firm a few hours
a week. (Tr. 34-35).
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.
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 residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
A. Subjective Complaints and Credibility Analysis:
The Court will first address the ALJ’s assessment of Plaintiff’s subjective complaints.
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 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 evaluated
Plaintiff’s subjective complaints. Although Plaintiff contends that her abdominal adhesions,
fibromyalgia, migraine headaches and depression were disabling, the evidence of record does not
support this conclusion.
The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms.
However, he found that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of the symptoms were not credible to the
extent they were inconsistent with his RFC assessment. (Tr. 55). He referred to Plaintiff’s
inconsistent statements regarding maters relevant to the issue of disability. For example, the ALJ
referred to the fact that Plaintiff applied for and collected unemployment compensation for the
2nd, 3rd, and 4th quarters of 2008 as well as the 1st and 2nd quarters of 2009. (Tr. 119). The ALJ
concluded that Plaintiff’s receipt of unemployment compensation was evidence that the
allegations regarding the limiting effects of her impairments were not fully supported.
The fact that Plaintiff applied for and collected unemployment compensation indicates that
Plaintiff was able to work and may be some evidence, though not conclusive, to negate her claim
that she was disabled during the relevant time period. Jernigan v. Sullivan, 948 F.2d 1070, 1074
(8th Cir. 1991). This is not the only factor the ALJ considered in making his credibility
determination. Plaintiff’s daily activities also belied Plaintiff’s allegation of disabling pain. In
September of 2008, Plaintiff told Dr. Efird that she lived with her boyfriend and was able to
perform basic self-care tasks satisfactorily, and perform household chores satisfactorily. At the
hearing, Plaintiff testified that she cooked “easy things,” did her own housework when she felt
up to it, dusted, put dishes in the dishwasher, wiped off the counters, and did “normal
housework.” She testified that she had gone back to work at the Cazort Law firm, working two
half days, and that she had just worked there three weeks prior to the date of the hearing
Plaintiff indicated on more than one occasion that she was unable to afford medication.
However, Plaintiff was able to afford to buy cigarettes, indicating in the record that she smoked
1 ½ packs of cigarettes daily. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999)(Although
Plaintiff claimed he could not afford medication, there was no evidence to suggest that he sought
any treatment offered to indigents or chose to forego smoking to help finance pain medication).
The Eighth Circuit has held that an individual’s inability to afford medical services is not
determinative. See Murphy v. Sullivan, 953 F.2d 383, 386-87(8th Cir. 1992). There is no record
of Plaintiff being denied treatment because of finances, or of Plaintiff attempting to seek treatment
from a clinic for indigents. Id.
With respect to Plaintiff’s depression and anxiety disorder, Plaintiff never sought or
received treatment by specialized mental health experts. In addition, Dr. Efird, an examining
consultant, found that Plaintiff had the capacity to perform basic cognitive tasks required for basic
work-like activities, and Dr. Gale, a non-examining consultant, found Plaintiff would be able to
engage in unskilled work.
With respect to Plaintiff’s physical assessment, Dr. McGowan, one of Plaintiff’s treating
physicians, noted that Plaintiff thought the Lyrica she had taken and discontinued might have
helped her, and Dr. McGowan restarted Plaintiff on Lyrica for her fibromyalgia. Dr. Takach, a
non-examining consultant, assessed Plaintiff as being able to perform light work with certain
The ALJ gave great weight to the opinion of Dr. Efird, since it was consistent with the
medical evidence as a whole. The ALJ also gave great weight to Dr. Kay Gale, since her opinion
was consistent with the medical evidence as a whole. The ALJ further found that due to the lack
of relevant medical records from Plaintiff’s treating physicians, he was unable to give much
weight to their opinions “except to agree that the claimant does have the severe impairments as
documented in this decision.”
The Court finds that substantial evidence supports the ALJ’s conclusion that Plaintiff’s
subjective complaints were not totally credible.
The ALJ found that Plaintiff had the RFC to perform light work with certain limitations.
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 description 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 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). “The 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 light work with limitations. In making this RFC
determination, the ALJ gave great weight to the opinions of Dr. Efird and Dr. Gale. As stated
earlier, Dr. Efird indicated that Plaintiff had the capacity to perform basic cognitive tasks required
for basic work like activities, and had no remarkable problems with attention/concentration. He
also found that Plaintiff generally completed tasks assigned during the evaluation and had no
remarkable problems with persistence during the evaluation.
In her Mental RFC Assessment, Dr. Gale found that Plaintiff was able to perform work
where interpersonal contact was incidental to work performed; where complexity of tasks was
learned and performed by rote, with few variables and where little judgment was used; and where
supervision required was simple, direct and concrete. She concluded that Plaintiff could
performed unskilled work.
In a Physical RFC Assessment, Dr. Takach found Plaintiff could function with light work
limits, and the only limitations Plaintiff had related to the fact that she could occasionally climb
ramps, stairs, ladders, ropes, and scaffolds, and occasionally balance, stoop, kneel, crouch, and
The Court also finds it noteworthy that Plaintiff saw Dr. Norys and Dr. McGowan in early
2008 for her headaches and fibromyalgia. However, there are no medical records indicating that
Plaintiff sought or received treatment thereafter for her fibromyalgia, depression, or anxiety, until
mid 2009, when she saw Dr. Rebecca Barrett. Based on the entire evidence of record, the Court
finds substantial evidence supports the ALJ’s RFC findings.
Hypothetical Proposed to Vocational Expert:
The ALJ submitted questions to the VE which fully set forth the impairments which the
ALJ accepted as true and which were supported by the record as a whole. See Goff v. Barnhart,
421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that the VE’s testimony
constitutes substantial evidence supporting the ALJ’s conclusion that Plaintiff’s impairments did
not preclude her from performing other work such as a hand packager, sewing machine operator,
or poultry processing worker. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from
vocational expert based on properly phrased hypothetical question constitutes substantial
In her brief, Plaintiff asserts that the ALJ had formulated the hypotheticals prior to the
hearing (he submitted them to the VE at the beginning of the hearing through interrogatories) and
was therefore already of the mind that it was either one way or another. (Doc. 9 at p. 13).
Plaintiff argues that the ALJ was “predisposed to finding against Plaintiff and that he failed to
discuss or outright ignored contrary testimony of Plaintiff.” (Doc. 9 at p. 13). “ALJs and other
similar quasi-judicial administrative officers are presumed to be unbiased.” Perkins v. Astrue,
2011 WL 3477199, at *7 (8th Cir. 2011), citing Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001). Plaintiff bears the burden of producing sufficient evidence to overcome this presumption,
and is required to show that the ALJ’s behavior, in the context of the whole case, is “so extreme
as to display clear inability to render fair judgment.” Perkins, 2011 WL 3477199 at *7-8.
Plaintiff has not made a showing that the ALJ’s conduct rose to this level.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and affirms the ALJ’s
decision. Plaintiff’s complaint is dismissed with prejudice.
IT IS SO ORDERED this 24th day of August, 2011
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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