Gunsaulis v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 30, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOYCE D. GUNSAULIS
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Joyce D. Gunsaulis, 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 claim for a period of disability and disability insurance benefits
(DIB) under the provisions of Title II 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 current application for DIB on July 21, 2008, alleging an
inability to work since July 21, 2008, due to fibromyalgia and Graves disease. (Tr. 141, 145).
An administrative hearing was held on March 9, 2010, at which Plaintiff appeared with counsel
and testified. (Tr. 33-64).
By written decision dated June 22, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe fibromyalgia and mood disorder. (Tr. 19). 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. 20). The ALJ found Plaintiff retained the residual functional capacity
lift and carry ten pounds occasionally and less than ten pounds frequently;
sit for about six hours during an eight-hour workday; and stand and walk
for at least two hours during an eight-hour workday. The claimant can
occasionally climb, balance, stoop, kneel, crouch, and crawl.
Additionally, the claimant can understand, remember, and carry out
simple, routine, and repetitive tasks; and respond appropriately to
supervisors, co-workers, the general public and usual work situations.
(Tr. 21). With the help of a vocational expert (VE), the ALJ determined that Plaintiff would be
unable to perform her past relevant work, but that there were other jobs that Plaintiff would be
able to perform - almond sorter; puller through; and weight inspector. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on November 9, 2011. (Tr. 1-4). 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 not ready for decision. (Docs. 9, 14).
Plaintiff has also filed a Motion to Remand for Consideration of New and Material
Evidence. (Doc. 10). Defendant has incorporated a response to this motion in his appeal brief
and the Court will address it in this opinion as well. (Doc. 14).
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.
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 his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal and in her Motion to Remand: 1) Whether
the ALJ properly evaluated the severity of Plaintiff’s major depression, single episode severe
with mood congruent psychosis, a panic disorder without agoraphobia, features of post traumatic
stress disorder (PTSD) and a dependent personality disorder in assessing Plaintiff’s mental RFC;
2) Whether the ALJ properly evaluated Plaintiff’s credibility; 3) whether the Appeals Council
properly declined review of the case in view of Plaintiff’s subsequent approval for disability
benefits following the ALJ’s unfavorable decision.
Plaintiff’s Mental 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 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 discussing Plaintiff’s mental impairments, the ALJ found that: in activities of daily
living, Plaintiff had mild restriction; in social functioning, Plaintiff had moderate difficulties; in
concentration, persistence or pace, Plaintiff had moderate difficulties; and Plaintiff had
experienced no episodes of decompensation, which have been of extended duration. (Tr. 20).
As Plaintiff’s mental impairments did not cause at least two “marked” limitations or one
“marked” limitation and “repeated” episodes of decompensation, each of extended duration, the
ALJ found that Plaintiff’s mental impairments did not satisfy “paragraph B” criteria. (Tr. 20).
Plaintiff was treated at Ozark Guidance Center (OGC) in 2004, 2005, and part of 2006.
In the last record from OGC, Plaintiff was given the following final assessment:
Current GAF - 50 last contact
Prognosis - fair
Intake assessment and diagnosis:
Anxiety DSO, NOS
Depression DSO NOS
On October 30, 2006, Dr. Robert B. Wilson, Jr. reported that Plaintiff stated she had
symptoms of anxiety for a long time and took Xanax in the past. He diagnosed her with anxiety
syndrome (tense or nervous) and tobacco dependency (nicotine addiction). He suggested tobacco
cessation, and increased water intake and exercise. (Tr. 252). On March 7, 2008, Dr. Wilson
reported that Plaintiff was depressed and anxious and had not done well on various
antidepressants, and assessed her with fibromyalgia (multiple tender and tense muscle groups);
Graves disease; anxiety syndrome (tense or nervous); depression; and tobacco dependency
(nicotine addiction). (Tr. 246-247).
On April 8, 2008, Dr. Robert Wilson, III, reported that Plaintiff started Cymbalta and
Lyrica a month previously, and that she was feeling much better. She had not noticed any side
effects of the medications, and reported that this was the best she had felt in years. (Tr. 245).
Dr. Wilson then assessed her as follows:
Fibromyalgia (multiple tender and tense muscle groups)
Anxiety syndrome (tense of nervous)
On June 10, 2008, Plaintiff reported to Dr. Robert Wilson, III that she quit Cymbalta
three weeks prior because she thought she could, because she was doing well. (Tr. 242). Dr.
Wilson recommended she get back on the Cymbalta. (Tr. 242).
On August 6, 2008, Plaintiff presented herself to Dr. Ronald Bertram, who had been her
treating physician, and asked Dr. Bertram to write letters stating that she couldn’t work from the
22nd on for work disability, but also wanted him to write a separate one for a car loan, stating that
she was working after the 22nd until the 29th because she bought a car on the 26th. (Tr. 230). Dr.
Bertram noted that this was asking him to participate in fraud, Plaintiff had violated their
relationship, and he dismissed Plaintiff as a patient. (Tr. 230).
On November 2, 2008, Plaintiff went to the Emergency Room of the Washington
Regional Medical Center, unable to talk, with neck pain and numbness and extreme weakness.
(Tr. 330). When Plaintiff was offered treatment for a stroke, suddenly she could move all
extremities and talk. (Tr. 332). Plaintiff was diagnosed with “conversion disorder, additional:
dental pain.” (Tr. 332).
On April 21, 2010, Dr. Richard Back, of Northwest Arkansas Psychological Group,
conducted a Mental Diagnostic Evaluation. (Tr. 447-455). Dr. Back reported that one month
previously, Plaintiff moved in with her new boyfriend that she met at a dance. (Tr. 449). Dr.
Back reported that Plaintiff drove, shopped on a weekly basis, handled her personal finances,
vacuumed, swept, cooked meals, did the laundry, and showered daily. (Tr. 450). She also
reported that she was currently performing part-time work of 14 hours a week for Home Health,
taking care of her mother. (Tr. 450). Dr. Back diagnosed Plaintiff as follows:
Major Depression, Single Episode, Severe with Mood
Panic Disorder without Agoraphobia
Features of PTSD
R/O Dependent Personality Disorder
(Tr. 453). Dr. Back found that Plaintiff’s mental impairments interfered with her day to day
adaptive functioning to a moderate extent; that her capacity to communicate and interact in a
socially adequate manner was markedly impaired; that her capacity to cope with typical
mental/cognitive demands of basic work-like tasks was mildly impaired; that her ability to attend
ans sustain concentration on basic tasks was markedly impaired; that her capacity to sustain
persistence in completing tasks was moderately impaired; that her capacity to complete work-like
tasks within an acceptable time frame was moderately impaired; and that she was not able to
manage funds without assistance. (Tr. 453-454).
As noted by Defendant, it is significant that Plaintiff’s own treating physician rejected
her claims of restriction. Masterson v. Barnhart, 363 F.3d 731, 739 (8th Cir. 2004). In addition,
Plaintiff’s presentation during the period she sought disability benefits was inconsistent with her
claim of disability as well as suggestive of overt manipulation, and weighs against her claim of
disability. See Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In addition, the fact that
on November 2, 2008, when the hospital suggested Plaintiff be treated for stroke, Plaintiff
quickly became able to talk and move all extremities, calls into question Plaintiff’s credibility
and her claims of both mental and physical symptoms.
concentration/attention tasks. (Tr. 23). However, he also noted that Plaintiff was seen by Dr.
Back only once, and he did not have the benefit of access to all of her records. Therefore, the
ALJ gave his opinion some weight , but based on all the other evidence of record, the ALJ found
Plaintiff was capable of unskilled work, as described in his RFC assessment. (Tr. 23).
The ALJ determined Plaintiff’s mental RFC finding in a manner that is consistent with
his 20 C.F.R. § 404.1520a analysis, because a moderate limitation indicates that the individual
can still function satisfactorily in that area. As noted by Defendant, a severity analysis merely
indicates the individual has surpassed an initial de minimis evaluation that requires the
impairment be further considered, not that it necessarily imposes significant limitations.
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s mental RFC assessment.
B. Subjective Complaints and Credibility Analysis:
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 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 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.
In his decision, the ALJ 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. 23). Although non-examining consultant Dr. David
L. Hicks concluded in his Physical RFC Assessment (completed on August 22, 2008) that
Plaintiff was capable of performing light work with certain limitations (Tr. 272), the ALJ, after
considering all of the evidence, found that Plaintiff would be unable to perform work any greater
than at the unskilled sedentary level. (Tr. 23). The ALJ observed that on April 1, 2010, Dr. Tad
Morgan conducted a General Physical Examination, and found that the limitations he assessed
did not preclude work at the sedentary level. (Tr. 23). In his examination report, Dr. Morgan
noted that: Plaintiff smoked 3/4 packs of cigarettes per day and had for 20 years; everything was
within normal limits; and Plaintiff had a mild limitation to walk, stand, lift, or carry. (Tr. 442-9-
With respect to daily activities, the ALJ noted that Plaintiff was able to take care of her
personal needs, cook, perform household chores, drive, and shop. (Tr. 20). In his Mental
Diagnostic Evaluation, Dr. Back reported that Plaintiff moved in with her new boyfriend,
handled her personal finances, vacuumed regularly, swept, did the dishes, laundry, and showered
daily. (Tr. 450). Although Dr. Back found that Plaintiff’s capacity to communicate and interact
in a socially adequate manner was markedly impaired, it is noteworthy that she reported to Dr.
Back that she met her boyfriend when she “went dancing.” (Tr. 450, 453).
The Court finds that there is substantial evidence to support the ALJ’s credibility
findings, and that the ALJ’s RFC took into consideration all of the limitations which were
supported by the record.
Plaintiff’s Subsequent Approval for Disability Benefits:
Plaintiff contends it is unclear if the Appeals Council reviewed the subsequent allowance
of benefits since it did not appear to be a part of the record. However, in the Notice of Appeals
Council Action, dated November 9, 2011, the Appeals Council stated:
Also, the Appeals Council considered the fact that since the date of the
Administrative Law Judge’s decision, you were found to be under a
disability beginning June 23, 2010, based on the application(s) you filed
on August 4, 2010; however, the Council found that this information does
not warrant a change in the Administrative Law Judge’s decision.
(Tr. 2). As stated by Defendant, a contrary decision following the June 22, 2010 decision does
not deprive the ALJ’s decision of presumptive validity based upon his well reasoned review of
the evidence. In addition, the additional evidence Plaintiff references is simply a further
explanation by Dr. Back of his findings given in his Mental Diagnostic Evaluation, which the
Court discussed earlier in this opinion, and which would not warrant a change in the ALJ’s
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is
affirmed. The Court further finds that the Plaintiff’s Complaint should be dismissed with
DATED this 30th day of October, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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