Sanders v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 2, 2012. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

JIMMY SANDERS

PLAINTIFF

v.

CIVIL NO. 10-5223

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jimmy Sanders, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits 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 protectively filed his current applications for DIB and SSI on December 5,

2008,1 alleging an inability to work since July 1, 2008, due to back and neck problems, arthritis,
and vision problems. (Tr. 106-107, 113-115). An administrative hearing was held on April 13,
2010, at which Plaintiff appeared with counsel and testified. (Tr. 20-42).
By written decision dated May 28, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 11).

1

The Court notes the ALJ’s decision stated that Plaintiff filed his DIB application on March 2, 2009. It appears
Plaintiff filed an application for DIB in December of 2008, and March 2009. (Tr. 106, 116).

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Specifically, the ALJ found Plaintiff had the following severe impairments: chronic obstructive
pulmonary disease and hypertension. 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. 12). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
occasionally lift/carry 20 pounds and frequently 10 pounds. He can sit for 6
hours and can stand/walk for 6 hours. He must avoid concentrated exposure to
fumes, odors, dusts, and other pulmonary irritants. He can frequently climb,
balance, crawl, kneel, stoop, and crouch.
(Tr. 13). With the help of a vocational expert, the ALJ determined that Plaintiff could perform
his past relevant work as a drafting design/engineering draftsman and a convenience clerk. (Tr.
15).

Plaintiff then requested a review of the hearing decision by the Appeals Council, which

denied that request on October 1, 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. 8,9).
II.

Evidence Presented:
At the administrative hearing held before the ALJ on April 13, 2010, Plaintiff, who was

sixty-one years of age at the time, testified that he obtained a high school education, as well as
additional training in mechanical drafting and design. (Tr. 27). Plaintiff testified that he worked
full-time for forty years in mechanical drafting but was laid off from that job. (Tr. 28). Plaintiff
testified that after he was laid off, he moved to Arkansas, and obtained work at a convenience
store working as a cashier and stocker.

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The medical evidence dated prior to the relevant time period reveals Plaintiff was treated
for hypertension, respiratory problems and a skin infection of the right ring finger. (Tr. 211, 222,
233, 271).
The medical evidence during the relevant time period reflects the following. On March
31, 2009, Plaintiff underwent a consultative general physical examination performed by Dr. C.R.
Magness. (Tr. 251). Plaintiff complained of vision problems, back and neck pain and problems
with hypertension. Plaintiff also reported that he was not taking his medication for his
hypertension as prescribed. Upon examination, Dr. Magness noted that Plaintiff had 20/20
corrected vision in both eyes. Plaintiff was noted to have a decreased range of motion in his
neck and some decreased range of motion in his extremities. On a grade of one to five, Dr.
Magness noted Plaintiff’s muscle weakness in his extremities was a three. Plaintiff had no
muscle atrophy and Plaintiff’s gait and coordination were “ok.” Upon a limb function
evaluation, Dr. Magness reported Plaintiff was able to hold a pen and write; to touch fingertips
to palm; to grip 80% on the right and 90% on the left; to oppose thumb to fingers; to pick up a
coin; to stand and walk without assistive devices; to walk on heel and toes; and to squat and arise
from a squatting position. Dr. Magness diagnosed Plaintiff with chronic obstructive pulmonary
disease, cervical degenerative disc disease, osteoarthritis and a vision impairment. Dr. Magness
opined that Plaintiff had moderate to severe limitations with lifting, carrying and walking; and
that Plaintiff had moderate limitations in standing. (Tr. 265).
On May 1, 2009, Plaintiff underwent pre- and post-bronchodilator studies that revealed
normal large airway function with mild to moderate obstructive defects in smaller airway
function. (Tr. 258-262). Dr. Jon A Sexton noted that a slight bronchodilator response was seen.
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On May 8, 2009, Dr. Jerry Thomas completed a case analysis, which included the general
physical examination notes, as well as the pulmonary studies. (Tr. 263). Dr. Thomas noted that
Plaintiff did not have a “long record of [prescriptions] for [his] allegations,” that Plaintiff had
“essentially normal” pulmonary studies; and that Plaintiff’s activities of daily living were not
“especially limited.” Dr. Thomas opined that Plaintiff’s impairments were non-severe. After
reviewing the evidence of record, Dr. Crow affirmed Dr. Thomas’s findings on July 1, 2009.
(Tr. 268).
The record also contains a discharge record from Washington Regional Medical Center
dated January 5, 2010, detailing Plaintiff’s medications. (Tr. 276).
III.

Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported by

substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. 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. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
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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)(c). 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 has engaged in substantial
gainful activity since filing his 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 age, education, and experience. See 20 C.F.R. §§ 404.1520, 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 residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920.
IV.

Discussion:
Plaintiff contends that the ALJ erred in concluding that the Plaintiff was not disabled.

Defendant argues substantial evidence supports the ALJ’s determination.
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A.

Subjective Complaints and Credibility Analysis:

With regard to 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 his pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects
of his medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984). While an ALJ may not 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 United States Court of Appeals
for 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 his impairments were
disabling, the evidence of record does not support this conclusion.
With regard to Plaintiff’s alleged vision impairment, the ALJ pointed out that the record
reveals Dr. Magness observed that Plaintiff had 20/20 corrected vision in both eyes, with normal
confrontational fields, and that Plaintiff wore reading glasses. The ALJ found that while Dr.
Magness diagnosed Plaintiff with a vision impairment, Dr. Magness did not note any limitations
with regard to Plaintiff’s ability to perform basic work activities. Based on the record as a
whole, the Court finds substantial evidence to support the ALJ’s determination that Plaintiff does
not have a disabling visual impairment.

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With regard to Plaintiff’s alleged depression, the ALJ pointed out that the medical record
failed to show Plaintiff sought treatment from a mental health professional or that Plaintiff had
been diagnosed with a mental or emotional disorder. See Gowell v. Apfel, 242 F.3d 793, 796
(8th Cir. 2001) (holding that lack of evidence of ongoing counseling or psychiatric treatment for
depression weighs against plaintiff’s claim of disability). It is also noteworthy that Plaintiff did
not allege depression when he applied for benefits. See Dunahoo v. Apfel, 241 F.3d 1033, 1039
(8th Cir. 2001) (failure to allege disabling mental impairment in application is significant, even
if evidence of depression is later developed). Based on the record as a whole, the Court finds
substantial evidence of record to support the ALJ’s determination that Plaintiff does not have a
disabling mental impairment.
With regard to Plaintiff’s respiratory impairment, the ALJ noted that in March of 2009,
Dr. Magness noted Plaintiff’s lungs had an increased diameter and prolonged expiration. The
ALJ pointed out that while Dr. Magness diagnosed Plaintiff with chronic obstructive pulmonary
disease, Dr. Magness did not find Plaintiff had any limitations due to this impairment. The ALJ
also pointed out that pulmonary studies performed in May of 2009, revealed Plaintiff had normal
large airway function with mild to moderate obstructive defects in smaller airway function. The
ALJ further noted that the medical evidence revealed that despite continued recommendations
to cease smoking, Plaintiff continued to smoke. Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008) (ALJ appropriately considered claimant’s failure to stop smoking when making credibility
determinations). Based on the evidence as a whole, the Court finds substantial evidence to
support the ALJ’s determination that Plaintiff does not have a disabling respiratory impairment.

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With regard to Plaintiff’s cardiovascular impairment, the ALJ found that while Plaintiff
had been diagnosed with hypertension, the record reflected that when Plaintiff took his
medication as prescribed, his hypertension was controlled. Brace v. Astrue, 578 F.3d 882, 885
(8th Cir. 2009) (“If an impairment can be controlled by treatment or medication, it cannot be
considered disabling.”)(citations omitted). The ALJ also noted that the record revealed that
when Plaintiff did seek treatment for dizziness associated with his hypertension, Plaintiff’s
treating physician and the emergency room physicians all noted that Plaintiff had been noncompliant with his medication. Plaintiff even reported to Dr. Magness during his consultative
examination that he had not been taking his hypertension medication as prescribed. Based on
the evidence of record, the Court finds substantial evidence to support the ALJ determination that
Plaintiff does not have a disabling cardiovascular impairment.
While Plaintiff alleged an inability to seek treatment due to a lack of finances, the record
is void of any indication that Plaintiff had been denied treatment due to the lack of funds.
Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that lack of evidence that
plaintiff sought low-cost medical treatment from her doctor, clinics, or hospitals does not support
plaintiff’s contention of financial hardship). The record also showed that while Plaintiff indicated
he could not afford to seek treatment, he was able to find the funds to support his smoking habit.
Plaintiff's subjective complaints are also inconsistent with evidence regarding his daily
activities. In a Function report dated March 13, 2009, Plaintiff reported that he spent his day
eating, walking, working in the yard and garden, and watching television. (Tr. 164). With the
exception of having some difficulty bending over to tie his shoes, Plaintiff indicated that he had
no problems with taking care of his personal needs. Plaintiff reported he was able to prepare

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simple meals, to do both indoor and outdoor housework, to drive and do errands, and to fish as
often as he was able. This level of activity belies Plaintiff’s complaints of pain and limitation
and the Eighth Circuit has consistently held that the ability to perform such activities contradicts
a Plaintiff’s subjective allegations of disabling pain. Cruze v. Chater, 85 F.3d 1320, 1324 (8th
Cir.1996) (the ability to mow the lawn, care for animals, shop, do odd jobs and visit town tends
to prove claimant was able to work).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he has
not established that he is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
B.

RFC Assessment:

We next turn to the ALJ’s assessment of Plaintiff’s RFC. 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.

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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 the present case, the ALJ considered the medical assessments of examining agency
medical consultants, Plaintiff’s subjective complaints, and his medical records when he
determined Plaintiff could perform light work with limitations. In making this determination, the
ALJ found that Dr. Magness’s findings that Plaintiff was moderately to severely limited with his
ability to lift, carry, walk and stand were inconsistent with his narrative report of Plaintiff’s
capabilities. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (the ALJ may reject the
conclusions of any medical expert, whether hired by the claimant or the government, if they are
inconsistent with the record as a whole); Davidson v. Astrue, 501 F.3d 987, 990-91 (8th Cir.
2007) (finding ALJ correctly discounted a physician’s assessment report when his treatment notes
contradicted the report). In finding Plaintiff could do light work, the ALJ also noted the opinions
of two non-examining medical consultants who opined that based on Plaintiff’s lack of treatment,
Plaintiff’s essentially normal pulmonary studies and Plaintiff’s activities of daily living, that
Plaintiff had non-severe impairments. It is also noteworthy that Plaintiff reported at the
administrative hearing in April of 2010, that he could lift up to fifty pounds, but not for two to
three hours in one day. (Tr. 33-34). Therefore, based on all of the evidence contained in the
reocrd, the Court finds substantial evidence supporting the ALJ’s RFC determination.
C.

Hypothetical Question to the Vocational Expert:

Finally, the Court believes substantial evidence supports the ALJ's conclusion that
Plaintiff could perform his past relevant work as a drafting design/engineering draftsman and a
convenience store clerk during the relevant time period. According to the Commissioner's
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interpretation of past relevant work, a claimant will not be found to be disabled if he retains the
RFC to perform:
1. The actual functional demands and job duties of a particular
past relevant job; or
2. The functional demands and job duties of the occupation as
generally required by employers throughout the national economy.

20 C.F.R. § 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
1990)(expressly approving the two part test from S.S.R. 82-61). 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. See Long v. Chater, 108
F.3d 185, 188 (8th Cir. 1997); Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). Accordingly,
the Court finds that the vocational expert's testimony constitutes substantial evidence supporting
the ALJ's conclusion that Plaintiff is not disabled as he was able to perform his past relevant work
during the relevant time period. See Pickney, 96 F.3d at 296 (testimony from vocational expert
based on properly phrased hypothetical question constitutes substantial evidence).
V.

Conclusion:
Accordingly, having carefully reviewed the record, the undersigned finds substantial

evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision should
be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be dismissed
with prejudice.
DATED this 2nd day of February 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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