Armstrong v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 12, 2013. (src)
Armstrong v. Social Security Administration Commissioner
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TRICIA LEA ARMSTRONG
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Tricia Lea Armstrong, 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 an 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 September 23, 2008,
alleging an inability to work since May 9, 2008,2 due to “I have back problems.” (Tr. 11, 58,
542). An administrative hearing was held on April 7, 2010, at which Plaintiff appeared with
counsel and testified. (Tr. 535-590).
By written decision dated November 19, 2010, the ALJ found that Plaintiff had an
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Plaintiff amended her onset date to May 9, 2008 at the hearing held before the ALJ. (Tr. 542).
impairment or combination of impairments that were severe - degenerative joint disease status
post 2 surgeries of the left shoulder, osteoarthritis and allied disorders with chronic low back and
knee pain, cervical syrinx3 with Chiari I malformation, obesity, depressive disorder NOS,
generalized anxiety disorder with obsessionality, and cannabis abuse. (Tr. 13). 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. 14). 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 as follows: the claimant can only occasionally balance
and stoop. The claimant cannot climb ladders, scaffolds, or ropes, kneel,
crouch, crawl, or work overhead. The claimant is able to frequently, but
not constantly, reach and handle with the non-dominant left upper
extremity. The claimant must avoid hazards such as unprotected heights
or moving machinery, and she cannot operate motor vehicles as part of
her work. The claimant must avoid concentrated exposure to extreme
cold. The claimant is able to work where instructions are simple and noncomplex; 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 simple, routine, and
repetitive; there are few variables; little judgment is required; and the
supervision required is simple, direct, and concrete.
(Tr. 16). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was
unable to perform any past relevant work, but that there were other jobs Plaintiff could perform,
such as assembler and machine tender. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on March 16, 2012. (Tr. 3-5). Subsequently, Plaintiff filed this action. (Doc.
Syrinx - 1. A rarely used synonym for fistula. 2. A pathologic tubular cavity in the brain or spinal cord with a
gliotic lining. Stedman’s Medical Dictionary 1923 (28th ed. 2006).
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 isn ow ready for decision. (Docs. 11, 12).
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 her residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) The ALJ erred in his credibility
findings; 2) the ALJ did not consider the combined effects of Plaintiff’s impairments; and 3) The
ALJ erred in his RFC findings. (Doc. 11).
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 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.
The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of the symptoms were not credible to the extent they were
inconsistent with the RFC assessment. (Tr. 17). The ALJ reported that Plaintiff had mild
restriction in her activities of daily living, noting that Plaintiff was able to feed and dress herself
and attend to personal hygiene without assistance. (Tr. 15). He also reported that Plaintiff was
able to clean, wash clothes, wash dishes, and perform some household chores although she said
that she was limited by pain symptoms. (Tr. 15). The ALJ discussed the fact that Plaintiff’s
treating physicians assessed Plaintiff as engaging in drug seeking behavior, that is not consistent
with her allegations. (Tr. 18). This is confirmed by the medical records as well as the report of
Ronald E. McInroe, Psy.D., who performed a Mental Diagnostic Evaluation on May 4, 2010, and
reported that Plaintiff stated she was then using marijuana on a daily basis to help control her
pain, and that she had previously used prescription medication excessively. (Tr. 507). It is also
interesting to note that within the month of June, 2008, Plaintiff presented herself to three
different medical health facilities within a period of five days, complaining of shoulder and back
pain and requesting pain medicines, which is consistent with drug seeking behavior. (Tr. 97-99,
Based upon the foregoing, as well as the reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the ALJ’s credibility findings.
Combined Effects of Plaintiff’s Impairments:
In his decision, the ALJ set forth the fact that at step two, he must determine whether
Plaintiff had “a medically determinable impairment that is ‘severe’ or a combination of
impairments that is ‘severe.’” (Tr. 12). He also stated that an impairment or combination of
impairments was “not severe” when medical and other evidence established only a slight
abnormality or a combination of slight abnormalities that would have no more than a minimal
effect on an individual’s ability to work. (Tr. 12). The ALJ stated that at step three, he must
determine whether the Plaintiff’s “impairment or combination of impairments” meets or
medically equals the criteria of an impairment listed in the relevant listings. (Tr. 12). The ALJ
concluded that Plaintiff did not have an impairment “or combination of impairments” that met
or medically equaled the severity of one of the listed impairments. (Tr. 14). 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
With respect to Plaintiff’s obesity, the ALJ found that Plaintiff’s obesity had more than
a minimal effect on her physical ability to do basic work activities and was therefore severe,
consistent with SSR 85.28, and that her obesity could reasonably limit Plaintiff’s walking,
standing, and lifting, and carrying, or have adverse effects on other body systems. (Tr. 14). He
also found that considered individually, or in combination with Plaintiff’s other impairments
consistent with SSR 02-1p, the medical evidence of record was not attended with the specific
clinical signs and diagnostic findings pertaining to obesity meeting, or medically equaling in
severity, an impairment set forth in the Listing of Impairments. (Tr. 14). The ALJ noted that the
medical evidence did not document conditions arising from obesity that affect other body
systems or prevented Plaintiff from sustaining a reasonable walking pace over a sufficient
distance or using the upper extremities effectively to be able to carry out activities of daily living.
(Tr. 14). Clearly, the ALJ considered Plaintiff’s obesity as well.
Based upon the foregoing, as well as the reasons given in Defendant’s well-stated brief,
the Court finds the ALJ considered the combination of impairments.
RFC is the most a person can do despite that person’s limitations.
§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 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
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 this case, the ALJ found that Plaintiff had the RFC to perform sedentary work with
certain limitations. (Tr. 16). The ALJ considered all of the medical records, including the
records of Dr. Robert Tomlinson, Dr. James B. Blankenship, and Ron McInroe, Psy.D. (Tr. 1718). Although Plaintiff initially declined to have an MRI of her lumbar spine in 2006, saying “I
already know whats wrong with me - I don’t need an MRI” (Tr. 260), x-rays of Plaintiff’s
cervical spine revealed no acute fractures or dislocations. (Tr. 433). On February 8, 2007, an
MRI of Plaintiff’s shoulder revealed a full-thickness tear of the anterior aspect of Plaintiff’s left
rotator cuff (Tr. 460), which, on March 8, 2007, was repaired by Dr. Tomlinson. (Tr. 354).
Subsequent thereto, Plaintiff began suffering from neck pain, and on May 15, 2007, a CT of
Plaintiff’s cervical spine indicated that a cervical syrinx was suggested. Otherwise, there was
no evidence of acute cervical spine injury. (Tr. 171-173).
On June 12, 2007, Plaintiff saw Dr. James B. Blankenship, of the Neurosurgery Spine
Center, and a cervical MRI revealed a Chiari I malformation with a large upper cervical syrinx.
(Tr. 469). No other abnormalities of the cervical spinal cord were noted. (Tr. 469). On June 13,
2007, Dr. Blankenship reported that the AP and lateral cervical radiograph did not demonstrate
any significant spondylosis. (Tr. 471). Plaintiff did have rather marked straightening of the
cervical spine with fair range of motion, but not of marked significance, and no pathologic
motion was noted. (Tr. 471). As Plaintiff continued to have problems with her left shoulder, a
second rotator cuff surgery was performed on December 6, 2007. (Tr. 403). By February 22,
2008, Plaintiff was doing so well with her left shoulder that she advised Dr. Tomlinson that she
could do more than lift and carry 10 pounds at work. (Tr. 420). Dr. Tomlinson allowed her to
return to work with no lifting or carrying greater than 20 pounds with the left arm, and no
pushing or pulling greater than 20 pounds with the left arm. (Tr. 420). Dr. Tomlinson concluded
that Plaintiff had a 10% left upper extremity impairment, or a 6% total body impairment. (Tr.
A Physical RFC Assessment was completed by non-examining consultant, Jerry Mann
on January 20,2009. (Tr. 181-188). Dr. Mann found Plaintiff could perform light work, with no
limitations. On February 6, 2009, Plaintiff was reported by Hastings Indian Hospital as moving
her extremities well, and had a limping gait. (Tr. 203). On March 30, 2009, Hastings Indian
Hospital reported that Plaintiff was a “no show” for physical therapy scheduled at the Mankiller
clinic on March 3, 2009. (Tr. 194).
On July 15, 2009, a Psychiatric Review Technique form was completed by Brad
Williams, Ph.D. (Tr. 337-349). Dr. Williams found that Plaintiff had a mild degree of limitation
in restriction of activities of daily living, difficulties in maintaining social functioning and in
maintaining concentration, persistence, or pace, and no episodes of decompensation, each of
extended duration. (Tr. 347). He concluded that this case was rated “non-severe.” (Tr. 349).
A cervical spine MRI was performed on February 26, 2010, which revealed a cord syrinx
extending from the level of the cervical medullary junction to the C5-6 intervertebral disc space;
no demonstration of disc protrusion, extruded disc fragment, cord compression, or demonstration
of T1 shortening that would suggest cord hemorrhage; and the craniocervical junction did
demonstrate cerebellar tonsillar extopia with narrowing of the subarachnoid space and may be
compatible with history of chiari malformation. (Tr. 426).
As noted earlier, Dr. McInroe, conducted a Mental Diagnostic Evaluation dated May 4,
2010, and gave Plaintiff a GAF of 58. (Tr. 508).
The ALJ gave the opinions of Plaintiff’s examining and treating physicians substantial
weight, and concluded that his RFC was supported by the medical evidence of record, including
the findings and opinions of the Plaintiff’s treating physicians. (Tr. 18). He further concluded
that the evidence did not support the severity of pain symptoms Plaintiff alleged. He referred
to the records of Wilma P. Mankiller Health Clinic, which show that Plaintiff was provided a 15
day supply of Tramadol when she complained of chronic headaches and chronic neck pain on
February 12, 2010, but there was no mention of knee pain, shoulder pain, or low back pain at that
time. (Tr. 18, 513-514).
The Court finds that the ALJ sufficiently explained his RFC findings and gave
appropriate weight to the physicians’ opinions, and that there is substantial evidence to support
the ALJ’s RFC findings.
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 12th day of August, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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