Medina v. Social Security Administration Commissioner

Filing 22

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 11, 2013. (adw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JUAN M. MEDINA

PLAINTIFF

V.

NO. 11-5175

MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Juan M. Medina, 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) 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 applications for DIB and SSI on May 25, 2007, alleging

an inability to work since June 3, 2004, due to “Back/spinal/hand/leg problems, headaches,
depression, anxiety, high blood pressure.” (Tr. 174, 182-183). An administrative hearing was
held on August 25, 2009, at which Plaintiff appeared with counsel and testified.1 (Tr. 10-46).
By written decision dated November 16, 2009, the ALJ found that during the relevant

1

The Administrative Law Judge (ALJ) noted that Plaintiff had filed applications for DIB and SSI previously on
December 13, 2004. An unfavorable decision was issued by an ALJ and the Appeals Council remanded the case,
and directed the ALJ to associate the claims filed and to issue a new decision on the associated claims. (Tr. 59).

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time period, Plaintiff had an impairment or combination of impairments that were severe - back
disorder, obesity, hypertension, headaches, and sleep disruption/fatigue/depression. (Tr. 62).
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. 63). 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 that while the claimant can frequently lift and/or carry
less than ten pounds, and occasionally ten pounds, sit for a total of six
hours in an eight hour work day, and stand and/or walk for at least two
hours in an eight hour work day, he can not climb ladders, scaffolds, or
ropes and he should not be exposed to unprotected heights, dangerous
equipment/machinery, or extreme vibration. The claimant cannot engage
in the sustained operation of motor vehicles and he will require the option
to alternate between sitting and standing, with the ability to sustain sitting
continuously for 20 minutes at a time, and to stand continuously for 20
minutes at a time. The claimant can occasionally climb ramps or stairs,
stoop, bend, crouch, crawl, kneel, or balance. The claimant must work
where instructions are simple and non-complex; interpersonal contact
with co-workers and the public is superficial and incidental to the work
performed; the complexity of tasks is learned and performed by rote; the
work is routine and repetitive; there are few variables, little judgment is
required; and the supervision required is simple, direct, and concrete.
(Tr. 65). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff was unable to perform any past relevant work, but could perform
such jobs as lamp shade assembler, compact assembler, and fishing reel assembler. (Tr. 68-70).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 26, 2011. (Tr. 1-5). 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. 20, 21).
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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:
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),
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1382(3)(D). 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 had engaged in substantial
gainful activity since filing his 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 his 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 his residual functional capacity (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 on appeal: 1) Whether the ALJ properly considered

the combined effects of Plaintiff’s impairments; 2) Whether the ALJ properly assessed Plaintiff’s
credibility and discounted it for legally sufficient reasons; 3) Whether substantial evidence
supported the ALJ’s residual functional capacity determination; and 4) whether the ALJ fully and
fairly developed the medical record. (Doc. 20).
A.

Combined Effects of Plaintiff’s Impairments:

The ALJ noted that disability is defined “as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment or
combination of impairments that can be expected to result in death or that has lasted or can be
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expected to last for a continuous period of not less than 12 months.” (Tr. 59-60). She also
noted that at step two of the evaluation, the ALJ must determine “whether the claimant has a
medically determinable impairment that is ‘severe’ or a combination of impairments that is
‘severe.’” (Tr. 60). The ALJ concluded that if the claimant has a severe impairment “or
combination of impairments, the analysis proceeds to the third step.” (Tr. 61). She then stated
that at step three, she must determine whether the claimant’s impairment “or combination of
impairments meets or medically equals” the criteria of a listed impairment. (Tr. 61). The ALJ
discussed each impairment and specifically found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments. (Tr.
63). This language demonstrates that the ALJ considered the combined effect of Plaintiff’s
impairments. See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011); Raney v. Barnhart, 396
F.3d 1007, 1011 (8th Cir. 2005). Based upon the foregoing, as well as the arguments set forth
in Defendant’s well-reasoned brief (Doc. 21 at pgs. 6-8), the Court finds there is substantial
evidence to conclude that the ALJ considered the combined effects of Plaintiff’s impairments.
B.

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
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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 her decision, the ALJ found that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of his symptoms were not credible to the extent they were
inconsistent with her RFC assessment. (Tr. 66). With respect to daily activities, the ALJ found
that Plaintiff had moderate restrictions. Although Plaintiff reported that he spent much of the
day resting, he also reported that while his wife worked, he watched their four children, ages 16,
14, 12, and 7. (Tr. 35, 188). Plaintiff reported he was also able to drive a car and shop for
groceries one or two times a week. (Tr. 191).
The ALJ noted that some of Plaintiff’s physical impairments were the result of an auto
accident which occurred on June 2, 2004. (Tr. 66). It is noteworthy that Plaintiff did not seek
medical treatment until the day after the accident, when he saw Dr. Phillip W. Rhoads, of Mercy
Health System of Northwest Arkansas, and that Dr. Rhoads prescribed Plaintiff muscle relaxants,
and stated that Plaintiff could return to work on Monday, June 7, 2004. (Tr. 242). On March 11,
2005, Plaintiff’s cervical spine x-ray was negative, and on April 28, 2005, an x-ray of Plaintiff’s
neck was reported as fine. (Tr. 246). On June 15, 2005, Plaintiff had full range of motion in his
neck. (Tr. 245).
The records also indicate that Plaintiff had high blood pressure, and that Dr. Rhoads
stressed the importance of him controlling his blood pressure on August 4, 2004. (Tr. 240).
Plaintiff was also advised by Dr. Carissa T. Candler, of Mercy Health System of Northwest
Arkansas, on July 28, 2005, to consider checking his blood pressure frequently. (Tr. 244). On
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July 6, 2006, Dr. Robert C. Thompson, of Orthopaedics & Sports Medicine Center, concluded
that the Plaintiff’s physical examination was unreliable, and stated as follows.
We have cervical spine films taken today that show essentially no
abnormalities here in the office to account for any majestic stiffness of
that type. The range of motion of the extremities is normal, but
accompanied by all sorts of groans. Bending of the elbow regardless of
the position of rotation of the shoulder he states hurts his back. I know
of no objective connection in this way and I would say that a number of
these would be considered Waddell’s sign. The range of motion
examination is considered completely unreliable for these reasons.
(Tr. 251). Dr. Thompson concluded that Plaintiff may have a possible grade 1 spondylolisthesis2
that would affect his ability to lift and long distance walk primarily. (Tr. 251).
With respect to medications, on August 10, 2007, when Dr. K. Marcus Poemoceah
conducted a General Physical Examination, Plaintiff reported only taking Tylenol. (Tr. 254).
On January 11, 2008, Plaintiff reported to Community Clinic at St. Francis House that his
headaches became worse when he stopped taking blood pressure medications. (Tr. 285).
Plaintiff subsequently presented himself to Community Clinic at St. Francis House in April,
May, June, and September of 2008. (Tr. 280-284). On June 17, 2008, it was reported that there
was no blood pressure log, and on September 3, 2008, his last recorded visit to the Community
Clinic, the report indicated “Not sure PT is taking recommended dosages.” (Tr. 280).
Plaintiff testified that he stopped going to the St. Francis House Community Clinic
because he did not have money to keep paying. (Tr. 34). While it is for the ALJ in the first
instance to determine a plaintiff’s motivation for failing to follow a prescribed course of
treatment, or to seek medical attention, such failure may be excused by a claimant’s lack of

2

Spondylolisthesis - Forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it,
or on the sacrum. Stedman’s Medical Dictionary, 1813 (28th ed. 2006).

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funds. Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984); Jackson v. Bowen, 866 F. 2d 274,
275 (8th Cir. 1989). Economic justifications for lack of treatment can be relevant to a disability
determination. However, there is nothing in the record to indicate that the St. Francis House
Community Clinic would no longer treat Plaintiff based upon his inability to pay. Nor is there
any indication that Plaintiff sought to obtain free medication from any other sources. The ALJ
also noted Plaintiff’s inconsistent statements made to his physicians, as well as Dr. Thompson’s
report of unreliability (Tr. 66-67), and deference to the ALJ’s credibility determination is
warranted. See Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).
Based upon the foregoing, and for the reasons given in Defendant’s well reasoned brief,
the Court finds there is substantial evidence to support the ALJ’s credibility findings.
C.

RFC Assessment:

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
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determine how those limitations affect his RFC.” Id.
The ALJ found that Plaintiff would be able to perform sedentary work with certain
limitations. With respect to Plaintiff’s argument that the ALJ did not consider Plaintiff’s
testimony regarding his pain and discomfort, the ALJ clearly stated that he considered the
evidence and that Plaintiff’s statement concerning the intensity, persistence and limiting effects
of the symptoms were not credible, and as indicated above, the Court believes there is substantial
evidence to support this finding.
Plaintiff argues that the ALJ offered no supportive medical evidence that Plaintiff
retained the capacity to perform sedentary work with certain limitations. On the contrary, the
ALJ addressed the fact that x-rays of Plaintiff’s cervical spine showed no significant abnormal
conditions, and the fact that in his General Physical Examination, Dr. Poemoceah diagnosed
Plaintiff with degenerative joint disease, muscle spasms, and a history of depression, but did not
assess Plaintiff with any work related limitations. (Tr. 66-67). In addition, non-examining
physician Dr. Steve Owens completed a Physical RFC Assessment and found that Plaintiff would
be able to perform light work, with certain limitations. (Tr. 262). The ALJ gave the opinions
of Plaintiff’s examining and treating physicians substantial weight, and weighed the nonexamining expert opinion consistent with 20 CFR 404.1527. (Tr. 68).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC findings.
D.

Failure to Fully Develop Record:

The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d
935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This is
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particularly true when Plaintiff is not represented by counsel. Payton v. Shalala, 25 FG.3d 684,
686 (8th Cir. 1994). This can be done by re-contacting medical sources and by ordering
additional consultative examinations, if necessary. See 20 C.F.R. § 404.1512. The ALJ’s duty
to fully and fairly develop the record is independent of Plaintiff’s burden to press his case.
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). However, the ALJ is not required to
function as Plaintiff’s substitute counsel, but only to develop a reasonably complete record. See
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)(“reversal due to failure to develop the record
is only warranted where such failure is unfair or prejudicial”). “The regulations do not require
the Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They
simply grant the ALJ the authority to do so if the existing medical sources do not contain
sufficient evidence to make a determination.” Matthews v. Bowen, 879 F.2d 423, 424 (8th Cir.
989).
Plaintiff argues that the ALJ neglected to procure a consultative psychiatric evaluation
to fully determine the extent and limiting effects of Plaintiff’s depression. The ALJ considered
Plaintiff’s allegations in the light most favorable to Plaintiff and recognized that some limitations
arising from depression symptoms, fatigue, and poor sleep related to back and/or headache pain.
However, the ALJ noted there was no record of psychiatric or medical treatment for depression
symptoms. (Tr. 68). As noted by Defendant, the fact that Plaintiff’s counsel did not obtain a
psychiatric evaluation suggests that the depression was of minor importance. See Shannon v.
Chater, 54 F.3d 484, 486 (8th Cir. 1995)(holding that the failure to seek treatment may indicate
the relative seriousness of a medical problem). Plaintiff has the burden to prove his disability,
and has responsibility for presenting the strongest case possible. See Thomas v. Sullivan, 928
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F.2d 255, 260 (8th Cir. 1991). Plaintiff also argues that the ALJ should have obtained images of
Plaintiff’s spine to determine the extent of Plaintiff’s back issues. However, it is noteworthy that
Dr. Candler, in a March 10, 2005 report, noted that Plaintiff could not fit into the MRI scanner.
(Tr. 247). As noted by Defendant, on July 6, 2006, Dr. Thompson noted that Plaintiff’s cervical
spine films taken that day showed “essentially no abnormalities here in the office to account for
any majestic stiffness of that type.” (Tr. 251).
Based upon the foregoing, the Court finds there is substantial evidence to support the fact
that the ALJ fully and fairly developed the record.
IV.

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

evidence supporting the ALJ’s decision denying the Plaintiff’s benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s complaint should be
dismissed with prejudice.
DATED this 11th day of January, 2013.
s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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