Richardson v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 25, 2012. (src)

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

KENNETH EUGENE RICHARDSON

v.

PLAINTIFF

CIVIL NO. 11-5083

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kenneth Eugene Richardson, 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 June 16, 2008,

alleging an inability to work since August 1, 2007, due to diabetes, a congenital hip dislocation,
and scoliosis. (Tr. 131, 138, 175). For DIB purposes, Plaintiff maintained insured status through
December 31, 2008. (Tr. 10, 141). An administrative hearing was held on September 30, 2009,
at which Plaintiff appeared with counsel and testified. (Tr. 35-74).

AO72A
(Rev. 8/82)

By written decision dated March 9, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 12).
Specifically, the ALJ found Plaintiff had the following severe impairments: degenerative joint
disease of the hip, scoliosis of the lumbar spine, and diabetes mellitus. 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. 13). 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 that
the claimant should do no climbing of ladders ropes and scaffolds and only
occasionally climb ramps and stairs. Additionally, the claimant occasionally can
balance, stoop, crouch, kneel, crawl, push and pull with his bilateral lower
extremities and can only have moderate exposure to unprotected heights.
(Tr. 13). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
in housekeeping, as a hand packager, and as a mail clerk. (Tr. 17-18).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after looking at additional evidence submitted by Plaintiff, denied that request on February 25,
2011.1 (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 7). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 9, 10).
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.

1

We note we consider this evidence, as it was submitted to the Appeals Council and the Appeals Council
considered it before denying review. See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).

-2-

AO72A
(Rev. 8/82)

II.

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. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
-3-

AO72A
(Rev. 8/82)

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.
III.

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

because (1) the ALJ failed to consider all of the Plaintiff’s impairments in combination; (2) the
ALJ erred in the analysis and credibility findings in regard to the Plaintiff’s subjective
complaints of pain; (3) the ALJ erred in finding that Plaintiff retained the RFC to perform less
than a full range of light work; and (4) the ALJ erred in failing to fully and fairly develop the
record. Defendant argues substantial evidence supports the ALJ’s determination.
A.

Combination of Impairments:

Plaintiff argues that the ALJ “fragmentized” Plaintiff’s subjective complaints, and failed
to consider the combined effects of his physical and mental impairments.
The ALJ found that Plaintiff’s severe impairments, singly or in combination, imposed
more than minimal limitations on Plaintiff’s ability to perform basic work activities. (Tr. 12).
-4-

AO72A
(Rev. 8/82)

The ALJ further found that the Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments. (Tr. 13). Such
language demonstrates the ALJ considered the combined effect of Plaintiff’s impairments.
Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
B.

Subjective Complaints and Credibility Analysis:

Plaintiff argues that the ALJ improperly disregarded Plaintiff’s subjective complaints.
Defendant argues that substantial evidence of record supports the ALJ’s credibility findings.
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 depression and anxiety, it is noteworthy that Plaintiff
did not allege a disabling mental impairment in his application for benefits. See Dunahoo v.
-5-

AO72A
(Rev. 8/82)

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). In addressing
Plaintiff’s mental impairments, the ALJ noted that the evidence failed to demonstrate that
Plaintiff sought or received mental health treatment during the relevant time period. 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). While the
medical evidence indicated that Plaintiff reported he had “some chronic anxiety” in December
of 2008 (Tr. 557),“bad anxiety” on April 8, 2009 (Tr. 482), and a history of depression and
anxiety in July of 2009 (Tr. 492), most of the medical evidence revealed that Plaintiff reported
no psychiatric history, and Plaintiff was noted to have intact judgment, insight, and memory.
(Tr. 246, 249, 252, 264, 301, 303, 493, 516, 560, 619). Thus, the Court finds that the ALJ
properly determined Plaintiff did not meet his burden of demonstrating his alleged mental
impairments were severe during the relevant time period.
Likewise, the Court finds that the ALJ properly addressed Plaintiff’s complaints
regarding his bleeding ulcer and GERD. A review of the medical evidence revealed that during
the relevant time period, Plaintiff sought emergency room treatment for gastrointestinal problems
on December 31, 2007, December 9, 2008, May 15, 2009, and August 17, 2009. (Tr. 299-320,
518-578, 587-685). This medical evidence indicated that with treatment, Plaintiff’s symptoms
resolved. 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). With each
admission, Plaintiff was instructed on what medication he needed to take; however the evidence
repeatedly noted that when Plaintiff sought emergency room treatment, he had not been
-6-

AO72A
(Rev. 8/82)

following the prescribed treatment plan. Brown v. Barnhart, 390 F.3d 535, 540-541 (8th Cir.
2004)(citations omitted)(“Failure to follow a prescribed course of remedial treatment without
good reason is grounds for denying an application for benefits.”), 20 C.F.R. § 416.930(b).
Based on the record as a whole, the Court finds substantial evidence supports the ALJ’s
determination that Plaintiff did not have disabling gastrointestinal impairments.
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). Plaintiff testified at the administrative hearing in
September of 2009 that he was not allowed to go to the Free Clinic anymore because he missed
an appointment due to his being in the hospital (Tr. 47-48); however, the evidence revealed that
in February of 2010, treatment notes indicated that Plaintiff was no longer treated at the Free
Clinic due to his “neglect” and “abuse to the Free Clinic employees.” (Tr. 747). Further, even
with not being able to seek treatment at the Free Clinic, the medical evidence further revealed
that Plaintiff had been made aware of other clinics in the area that helped people with financial
problems receive medical care. (Tr. 612). The record also revealed that in February of 2008,
Plaintiff left the waiting room prior to consulting with a social worker, who had been requested
to see if Plaintiff qualified for medical assistance. (Tr. 252). Furthermore, as pointed out by the
ALJ, the record revealed that despite reporting the inability to afford his medication, Plaintiff
continued to smoke up to one package of cigarettes a day, and found the funds to purchase
alcohol and marijuana. (Tr. 319, 519, 556).
-7-

AO72A
(Rev. 8/82)

With regard to Plaintiff’s diabetes mellitus, the record revealed that when Plaintiff
maintained a proper diet and took his medication as prescribed, his diabetes was controlled. The
medical evidence showed that Plaintiff made multiple trips to the emergency room (Tr. 255-320,
519-538, 746-783); however, with medication and hydration, Plaintiff’s blood sugars were
stabilized, and he was discharged with instructions to follow a prescribed diet, and to take
medication as prescribed.
In addressing Plaintiff’s diabetes, the ALJ also noted that the evidence of record revealed
that Plaintiff was non-compliant with his diabetes management (Tr. 15, 482), which ended up
requiring his need for emergency room treatment. The evidence of record revealed that Plaintiff
experienced problems with his diabetes after he took his insulin and then failed to eat prior to
going to work as a clean up crew at the football stadium in October of 2007; after he failed to
eat and then performed manual labor in December of 2007; after he failed to eat and then drank
vodka and smoked marijuana while floating down the river in May of 2009; and that in July of
2009, when seeking treatment for a left arm injury, Plaintiff reported that he had been drinking
and had not taken his insulin. (Tr. 227, 323, 491, 529). The record revealed that when Plaintiff
was compliant and took his medications as prescribed, and followed the proper diet, his blood
sugars were controlled. Based on the record as whole, the Court finds substantial evidence to
support the ALJ’s determination that Plaintiff did not have disabling diabetes.
With regard to Plaintiff’s back and hip impairment, the medical evidence revealed that
Plaintiff had a congenital deformity of his right hip, two fused vertebrae, and scoliosis.
However, the medical evidence repeatedly reported that Plaintiff’s back and extremities had
normal range of motion; that Plaintiff exhibited none to minimal tenderness to palpation; and
-8-

AO72A
(Rev. 8/82)

that Plaintiff had a normal gait. (Tr. 323, 517, 522). The evidence revealed that when Plaintiff
sought treatment for his hip and back pain in June of 2009, he reported that he had been helping
his friend move, and had stepped off of a curb wrong and injured his hip. (Tr. 507-538). Upon
examination, Dr. Joseph B. Averbach noted Plaintiff’s back had no CVA tenderness and no
tenderness to palpation. Dr. Averbach noted that Plaintiff had an obvious deformity to his right
hip; however, Plaintiff also exhibited normal range of motion in the left hip, and some passive
range of motion to his right hip but no tenderness. (Tr. 510). The evidence revealed that in July
of 2009, Plaintiff was noted as ambulatory with no tenderness to palpation in the back, and that
Plaintiff had no pain with the straight leg raises. (Tr. 494). In February of 2010, Plaintiff’s back
and extremities were noted to have a range of motion within normal limits, and Plaintiff and a
normal strength and tone in all four extremities. (Tr. 752). The record further revealed that
Plaintiff usually took Ibuprofen or Tylenol for his pain, as he was not consistently prescribed a
strong pain medication to alleviate this pain. See Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir.
1999) (infrequent use of prescription drugs supports discrediting complaints). Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s determination that
Plaintiff did not have a disabling back or hip impairment.
Plaintiff's subjective complaints are also inconsistent with evidence regarding his daily
activities. In a Function Report dated November 19, 2009, Plaintiff reported that he spent his
time watching television, listening to music, eating and napping. (Tr. 194-201). Plaintiff also
reported that he was able to take care of his personal hygiene, but noted he sometimes had pain
when putting on clothes or standing in the shower. Plaintiff reported he was able to prepare
simple meals, to clean and do some household chores, to use public transportation and to shop
-9-

AO72A
(Rev. 8/82)

for food. As addressed above, the record further revealed that Plaintiff was working as part of
a clean up crew in October of 2007; that Plaintiff was performing manual labor in December of
2007; that Plaintiff reported that he did odd jobs for a living in January of 2008; that he “walked
a lot” while applying for jobs in May of 2008; that he was able to float down the river with his
family and friends in May of 2009; and that in June of 2010, almost three months after the
relevant time period, Plaintiff was able to walk six and one-half miles to the store and back.2 (Tr.
715-745). 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. Hutton v. Apfel, 175 F.3d 651, 654-655 (8th
Cir. 1999) (holding ALJ’s rejection of claimant’s application supported by substantial evidence
where daily activities– making breakfast, washing dishes and clothes, visiting friends, watching
television and driving-were inconsistent with claim of total disability).
With regard to the testimony of Plaintiff's friend, the ALJ properly considered his
testimony but found it unpersuasive. This determination was within the ALJ's province. See
Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir. 1995); Ownbey v. Shalala, 5 F.3d 342, 345 (8th
Cir. 1993).
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.

2

The Court notes that Plaintiff did seek emergency room treatment after walking to the store a second time. (Tr.
715-745). Plaintiff’s treatment was for symptoms that arose due to nausea and vomiting. At that time, Plaintiff
reported he became overheated while walking to the store.

-10-

AO72A
(Rev. 8/82)

C.

The ALJ’s RFC determination:

Plaintiff argues that the ALJ erred in determining that Plaintiff could perform light work
and that the ALJ did not properly address Plaintiff’s mental impairments when determining
Plaintiff’s RFC. Defendant argues that substantial evidence of record supports the ALJ’s RFC
finding.
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.
In the present case, the ALJ considered the medical assessments of non-examining agency
medical consultants, Plaintiff’s subjective complaints, and his medical records when the ALJ
determined Plaintiff could perform work at the light level with some limitations.

-11-

AO72A
(Rev. 8/82)

With regard to Plaintiff’s alleged mental impairments, as addressed above, the ALJ found
Plaintiff’s alleged depression and anxiety to be non-severe impairments. In doing so, the ALJ
noted that along with no medical evidence revealing that Plaintiff sought consistent treatment for
a mental impairment, Plaintiff’s Pre-Hearing Memorandum also failed to allege that Plaintiff even
had mental impairments. (Tr. 221-222).
Plaintiff's capacity to perform light work with limitations is supported by the fact that the
medical evidence does not indicate that Plaintiff's examining physicians placed restrictions on his
activities that would preclude performing the RFC determined. See Hutton v. Apfel, 175 F.3d
651, 655 (8th Cir. 1999) (lack of physician-imposed restrictions militates against a finding of total
disability). The ALJ’s RFC determination is also supported by the findings of the non-examining
medical consultants, who opined that Plaintiff could perform light work. (Tr. 468, 480). Based
on the record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination.
D.

Fully and Fairly Develop the Record:

Finally, the Court rejects Plaintiff’s contention that the ALJ failed to fully and fairly
develop the record by failing to refer Plaintiff for a consultative psychological evaluation.
A review of the record revealed that Plaintiff did not allege a mental impairment in his
application for disability; that Plaintiff did not include a mental impairment in his Pre-Hearing
Memorandum; and that Plaintiff sought very minimal treatment for a mental impairment during
the relevant time period. While an ALJ is required to develop the record fully and fairly, see
Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination
only when it is necessary for an informed decision), the record before the ALJ contained the
-12-

AO72A
(Rev. 8/82)

evidence required to make a full and informed decision regarding Plaintiff’s capabilities during
the relevant time period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ
must develop record fully and fairly to ensure it includes evidence from treating physician, or at
least examining physician, addressing impairments at issue).
E.

Hypothetical Question to the Vocational Expert:

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 testimony constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff's impairments did not preclude him from performing work in housekeeping, as a hand
packager, and as a mail clerk. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony
from vocational expert based on properly phrased hypothetical question constitutes substantial
evidence).
IV.

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 25th day of May 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
-13-

AO72A
(Rev. 8/82)