Cook v. Social Security Administration Commissioner
Filing
14
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on September 30, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KAREN COOK
PLAINTIFF
V.
NO. 13-5178
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Karen Cook, 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 supplemental security income (SSI) under the provisions of Title 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 her current application for SSI on February 7, 2011, alleging
an inability to work since June 1, 1998, due to fibromyalgia, back problems, neck problems,
scoliosis, carpal tunnel, and right shoulder pain. (Tr. 94-102, 116, 120). An administrative
hearing was held on April 11, 2012, at which Plaintiff appeared with counsel and testified. (Tr.
28-38).
By written decision dated May 31, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe fibromyalgia. (Tr. 20). However, after reviewing all of the evidence presented, the ALJ
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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. 21). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform
the full range of medium work as defined in 20 C.F.R. 416.967(c). (Tr. 21). The ALJ determined
that during the relevant time period, considering Plaintiff’s age, education, and work experience,
a finding of “not disabled” was directed by Medical-Vocational Rule 203.28. (Tr. 24).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on June 28, 2013. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc.8). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
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. Barnard, 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. Barnard, 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
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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 her 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. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
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III.
Discussion:
Plaintiff raises the following issues on appeal: 1) The ALJ erred by finding that
Plaintiff’s carpal tunnel syndrome was not a severe impairment; 2) The ALJ erred in his RFC
assessment; and 3) The ALJ erred in discounting Plaintiff’s subjective complaints. (Doc. 12).
A.
Severe Impairment:
Plaintiff argues that her carpal tunnel syndrome is a severe impairment. An impairment
is severe within the meaning of the regulations if it significantly limits an individual’s ability to
perform basic work activities. 20 C.F.R. §§ 1520(a)(4)ii), 416.920(a)(4)(ii). An impairment or
combination of impairments is not severe when medical and other evidence establish 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. 20 C.F.R. § § 404.1521, 416.921. The
Supreme Court has adopted a “de minimis standard” with regard to the severity standard.
Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cri. 1989).
In his decision, the ALJ recognized that the results of Plaintiff’s EMG testing on August
16, 2011, showed mild carpal tunnel syndrome, and that Dr. Miles Johnson recommended
conservative management with wrist cock-up splints and non-steroid medications. (Tr. 20, 237).
The ALJ therefore concluded that Plaintiff’s carpal tunnel syndrome had no more than a minimal
effect on her physical ability to do basic work activities and was therefore non-severe. (Tr. 20).
This conclusion is further supported by the fact that on August 16, 2011, Dr. Joseph Ivy found
that Plaintiff had general normal strength and range of motion throughout her upper and lower
extremities. (Tr. 247). In addition, on November 7, 2011, Dr. Marianela Lavena noted that since
Plaintiff’s hysterectomy, she had been having pain in her left hand, and that neurontin was not
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helping much. However, Dr. Lavena also noted that Plaintiff reported taking care of her grand
kids and cleaning all day. (Tr. 223). By December 12, 2011, Plaintiff reported she was still
having pain and numbness in her hands (Tr. 221), but on January 16, 2012, Plaintiff reported to
Dr. Lavena that she was using wrist splints and it was helping a lot and that neurontin was also
helping. (Tr. 219).
Plaintiff alternatively argues that the ALJ failed to appropriately consider the non-severe
impairments in combination. 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. 19). He also stated that an impairment or
combination of impairments is “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. 19). 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. 19). 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. 21). 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, the Court finds there is substantial evidence to support the
ALJ’s finding that Plaintiff’s carpal tunnel syndrome had no more than a minimal effect on
Plaintiff’s activities and was therefore non-severe.
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B.
RFC Determination:
Plaintiff argues that the ALJ erred in not finding Plaintiff’s neck problems, carpal tunnel
syndrome, cervical cancer, or mental problems were severe impairments and that in light of
these additional impairments, the ALJ’s finding that Plaintiff can perform the full range of
medium work with no additional non-exertional limitations is not based on substantial evidence.
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 his decision, the ALJ found it was reasonable to assume that Plaintiff did experience
some limitations due to her fibromyalgia impairment, but that the degree to which it was
functionally limiting was an issue which was very much open to question. (Tr. 22). The ALJ
then discussed the fact that the medical records showed that Plaintiff had a longstanding history
of conservative medical treatment and medications that had been successful in relieving her
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symptoms as long as she remained compliant. (Tr. 22). The ALJ discussed the fact that Plaintiff
reported successful treatment of fibromyalgia with Savella, which she stopped. (Tr. 22). On
April 13, 2011, Plaintiff was seen by Dr. Latifat Ogon, and his report indicated that Plaintiff had
a history of fibromyalgia diagnosed about 15 years prior, that she was on Savella “which was
helpful,” but could not afford it so she discontinued it four months prior. (Tr. 199). At that time,
she was not using any pain medication. (Tr. 199). Dr. Ogon noted that Plaintiff’s strength in both
upper and lower limbs was 5/5. He assessed Plaintiff with elevated blood pressure reading
without diagnosis of hypertension, cervicalgia, fibromyalgia and “neuropathy in other Dis - r/o
cervical radicuolopathy.” (Tr. 199-200).
On April 4, 2011, Dr. Tad Morgan conducted a General Physical Examination of
Plaintiff. (Tr. 181-185). Dr. Morgan noted that Plaintiff smoked two cigarettes per day, had some
“stiffness with lat motion in neck-thyroid ok,” the range of motion of her extremities was within
normal limits, the range of motion of her cervical spine rotation was 0-70 degrees instead of 0-80
degrees; her gait/coordination was normal; she could perform all limb functions; and she had
100% normal grip in both hands. (Tr. 183-184). Dr. Morgan diagnosed Plaintiff with
fibromyalgia by history, and chronic pain in neck, shoulder, and arms, - with questionable
etiology. (Tr. 185). Dr. Morgan concluded that Plaintiff had “mild limitation” in her ability to
lift, carry, handle, and finger. (Tr. 185).
On April 11, 2011, non-examining consultant, Dr. Jonathan Norcross, completed a
Physical RFC Assessment form, and concluded that the medical records supported a medium
RFC. (Tr. 194). By June 3, 2011, Plaintiff was seen by Dr. Ogon, who found that Plaintiff
reported the neck pain was controlled with naprosyn and flexeril and she had mild relief with
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the neurontin. (Tr. 195). At that time, Plaintiff reported smoking 6-10 cigarettes per day, and was
thinking about quitting. (Tr. 195). On August 9, 2011, Plaintiff reported to Dr. Ogon that she
was smoking about 10 cigarettes or more a day, but less than a pack. (Tr. 230). Plaintiff also
reported to Dr. Ogon that the pain and numbness was controlled with present medications, and
that she needed refills. (Tr. 230). Dr. Ogon diagnosed Plaintiff with cervicalgia, tobacco use
disorder, and petechia.1 (Tr. 230).
The ALJ noted that no physician placed any functional restrictions on her activities that
would preclude work activity within his RFC determination. (Tr. 23). He concluded that Plaintiff
could perform medium work without experiencing significant exacerbation of her symptoms.
He essentially concurred with the opinions of the state agency consultants. (Tr. 23).
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s RFC determination.
C.
Credibility Findings:
Plaintiff argues that Plaintiff’s medical treatment has not been conservative and her
medication has not always dealt adequately with her symptoms. 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
1
Petechia - Minute hemorrhagic spots, of pinpoint to pinhead size, in the skin, which are not blanched by
pressure. Stedman’s Medical Dictionary 1468 (28th ed. 2006).
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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. 2003).
The ALJ specifically reported that the factor of subjective pain and discomfort had been
duly recognized and considered. (Tr. 22). He continued:
Yet, all such subjective pain and discomfort is not necessarily disabling. The
mere inability to work without some degree of pain or discomfort, of a minimal
to mild nature, does not necessarily constitute a “disability” for Social Security
purposes. The Administrative law Judge has attempted to discharge his duty to
find the nature, degree, and level of the claimant’s subjective pain and other
discomfort, and the functional restrictions which it imposes, by carefully
considering all pertinent evidence in the record as a whole. In a pain report the
claimant stated that she napped/rested twice or more each day. She reported
constant pain in the hips, neck, back, feet, legs, hands, and arms. The pain was
relieved with medication and using a pillow at her neck and back (Exhibit 4E).
The undersigned finds in this case that some degree of pain is substantiated by
the record, however, the claimant’s relief seeking behavior and treatment is not
indicative of a degree of pain that would limit activities beyond the scope of the
residual functional capacity as determined in this decision.
(Tr. 22-23). The ALJ further states that he did not discount all of Plaintiff’s complaints and
recognized that she did experience limitations. However, as no physician placed any functional
restrictions on her activities that would preclude work activity with his previously mentioned
restrictions, the ALJ found that the RFC was reasonable. (Tr. 23).
It is clear that the ALJ did not totally discount all of Plaintiff’s subjective complaints.
The ALJ noted that Plaintiff had mild limitations in activities of daily living, mild limitations
in social functioning, and mild limitation in concentration, persistence or pace. (Tr. 2021).Plaintiff had no problems with personal care, was able to prepare meals, take care of
grandchildren, and go to church and shop at stores.
Based upon the foregoing, the Court finds there is substantial evidence to support the
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ALJ’s credibility findings.
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.
IT IS SO ORDERED this 30th day of September, 2014.
/s/ Erin L. Setter
HONORABLE ERIN L. SETTER
UNITED STATES MAGISTRATE JUDGE
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