McGarrah v. Social Security Administration Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 8, 2014. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LINDA M. McGARRAH

PLAINTIFF

V.

NO. 13-5239

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Linda M. McGarrah, 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).
I.

Procedural Background:
Plaintiff protectively filed her current application for DIB on November 10, 2010,

alleging an inability to work since July 31, 1998, due to degenerative disc disease (DDD),
fibromyalgia, and osteoporosis. (Tr. 113-114, 127, 131). Plaintiff was insured through December
31, 2003. (Tr. 12). Therefore, the relevant time period in this case is July 31, 1998 to December
31, 2003. An administrative hearing was held on May 11, 2012, at which Plaintiff appeared
with counsel, and she and her husband testified. (Tr. 25-52).
By written decision dated June 11, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe -

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degenerative disc disease, fibromyalgia, and depression. (Tr. 14). 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 that during the relevant time period,
Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) with
restrictions. The claimant is capable of occasionally lifting and/or
carrying 10 pounds, but less than 10 pounds frequently. She is able to sit
for 6 hours of an 8-hour workday, and stand and/or walk for 2 hours of
an 8-hour day. She is able to occasionally climb, balance, crawl, kneel,
stoop and crouch. She is able to perform occasional overhead work. She
is capable of understanding simple, repetitive tasks, and responding to
supervision that is simple, direct and concrete in nature.
(Tr. 16). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would have been unable to perform any past relevant work, but
there were other jobs Plaintiff would have been able to perform, such as bench final assembler,
zipper machine tender, and hand packager. (Tr. 19-20).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 22, 2013. (Tr. 1-4). 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. 14, 16).
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.
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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
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

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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.
III.

Discussion:
Plaintiff raises the following issues on appeal: 1) The ALJ erred by failing to properly

consider all of Plaintiff’s impairments in combination; 2) The ALJ erred in his credibility
determination; 3) The ALJ erred in his RFC determination; and 4) The ALJ erred in relying on
testimony from the VE. (Doc. 14).
A.

Impairments in Combination:

Plaintiff argues that the ALJ failed to find several other impairments from which Plaintiff
suffered as severe, such as osteoarthritis in the bilateral knees, large medial meniscus tear in the
right knee, insomnia and chronic fatigue, facet joint disease, shoulder pain related to a torn
rotator cuff, degenerative joint disease of the back and knees, obesity, uncontrolled hypertension,
anxiety, gastrointestinal reflux disease, frequent urinary tract infections, panic attacks, kidney
problems, chest pain and hip pain.
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. 13). He also stated that an impairment or combination of

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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. 13). 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. 13). 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 Cir. 2005).
Furthermore, in her Disability Report - Adult - dated January 21, 2011, Plaintiff did not
list any impairment other than degenerative disc disease, fibromyalgia, and osteoporosis as
conditions that limited her ability to work (Tr. 131), which is significant. Dunahoo v. Apfel, 241
F.3d 1033, 1039 (8th Cir. 2001).
Based upon the foregoing, the Court finds there is substantial evidence that the ALJ
considered all of Plaintiff’s impairments in combination.
B.

Credibility Analysis:

Plaintiff argues that the ALJ improperly rejected Plaintiff’s statements concerning the
intensity, persistence and limiting effects of her symptoms and also neglected to note the
requirements of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
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

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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. 2003).
In his decision, 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 his RFC assessment. (Tr. 18). He concluded that although the
medical evidence from the period at issue demonstrated the existence of severe physical and
mental impairments, nothing in the record suggested that Plaintiff was completely disabled
during that time. (Tr. 18). Accordingly, the ALJ gave little weight to the hearing testimony. (Tr.
18). The ALJ noted in his decision that with respect to Plaintiff’s daily activities during the
relevant time period, Plaintiff was able to care for farm animals as well as her own family, and
was able to perform personal hygiene, albeit with some restriction. (Tr. 15). At the hearing held
before the ALJ on May 11, 2012, Plaintiff testified that in 1997 and 1998 she was working at
a restaurant, doing about five different jobs, including cleaning the restaurant every day. (Tr.
31). She also cleaned the restaurant owner’s house for him. (Tr. 31). Plaintiff testified that
Flexeril or muscle relaxers could not be taken while she was working, because they made her

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drowsy. (Tr. 33). Accordingly, she just took Tylenol during the day to try to “endure it and get
through the day.” (Tr. 34). She also testified that she was taking Effexor at that time, and stopped
taking it because it was not doing any good. (Tr. 34). She stated that at the time of the hearing,
she was taking Pristiq, and that it had helped more with depression than what the others had in
the past. (Tr. 34). Plaintiff further testified that in 1997 and 1998, even though she hurt, she had
her children to take care of, had to do the laundry when she got home from work, fix meals, and
had cattle that she had to take care of and lift heavy bags of hay and feed. (Tr. 35). She would
carry 60 pound bales of hay every day during the winter. (Tr. 35). She said that she did not really
notice she had anxiety at that time until she was diagnosed. (Tr. 35). Her anxiety “got bad” in
2007, well beyond the relevant time period, when she went on the anxiety medicine. (Tr. 36).
Plaintiff testified that after she stopped working, between 1998 and 2004, she began having
problems with her focus and concentration, and that between 1998 and 2003, she had surgery
on her right knee as an outpatient. (Tr. 38). She testified that between 2000 and 2003, her back
pain was getting worse but she would “still go ahead and try to do my things at home.”(Tr. 39).
She stated she was not the type that could stand to see anything that needed to be done and not
be able to do it. (Tr. 39). It is therefore clear that the ALJ considered Plaintiff’s daily activities
and found them to be inconsistent with disabling pain.
Also during the relevant time period, on October 12, 1998, X-rays of Plaintiff’s
lumbosacral spine revealed a possible unilateral spondylolysis at L-5 on the left; with no
evidence of spondylolisthesis; and a slight narrowing of the L-5/S-1 disc space. (Tr. 205). Upon
examination by Dr. Burton Bledsoe and Diane Serenson-Ungar, APN, on January 1, 1999,
Plaintiff’s gait was reported as coordinated and smooth, her station was erect, and her range of

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motion in all joints were without crepitus, pain or limitation. (Tr. 260). On June 2, 1999, Plaintiff
reported to Rouse Family Medical Clinic that she was getting mild help with Celebrex for her
low back. (Tr. 199). A CT of Plaintiff’s Lumbar spine on June 8, 2000, revealed mild disc bulge
at L4/L5 and L5/S1 without a focal disc herniation, facet arthropathy at L4/L5, and the
radiologist did not see any significant spinal stenosis or neural foraminal narrowing in the study.
(Tr. 203).
Plaintiff saw Dr. Curtis Hedberg in 2000 and 2001. By August 28, 2000, Dr. Hedberg
reported that Plaintiff was doing much better with her GERD, fibromyalgia, and depression. (Tr.
253). The Ultram seemed to be helping the pain and she was tolerating the Neurontin. (Tr. 253).
Dr. Hedberg assessed Plaintiff with GERD, stable, Fibromyalgia syndrome, improving, and
asked Plaintiff to continue her medications. (Tr. 253). By October 5, 2000, Plaintiff was
complaining of continued back pain. (Tr. 249). Most of her pain was in her low thoracic and
upper lumbar region and hips, and it was reported that she was very uncomfortable and could
barely remain seated in the chair because her back hurt so much. (Tr. 249). Plaintiff continued
to have pain on November 30, 2000, but had told Dr. Hedberg that she had been doing fairly
well except for having quite a bit of pain. (Tr. 247). The antidepressants had helped her greatly.
(Tr. 247). She was assessed with fibromyalgia and back pain. (Tr. 247).
On February 23, 2001, Plaintiff complained to Dr. Hedberg that she had continued
depression, and that her back continued to hurt, but she felt that the Celebrex had really helped
with the pain. (Tr. 243). By May 7, 2001, Dr. Hedberg reported that her CT scan showed
evidence of mild lumbar disc bulging and severe facet joint disease at L4,L5, and he suspected
this was the cause of her pain. (Tr. 240). Dr. Hedberg reported that he would have her make an

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appointment to see Dr. Vincent Runnels, and that very likely he would tell her that she needed
to lose weight and begin some type of exercise program. (Tr. 240). There is no indication in the
records that Plaintiff ever called Dr. Runnels for an evaluation. “Failure to follow a prescribed
course of remedial treatment without good reason is grounds for denying an application for
benefits.” Brown v. Barnhart, 390 F.3d 535, 540-541 (8th Cir. 2004) (citations omitted).
Plaintiff began seeing Dr. William C. Kendrick on March 21, 2003, when she
complained of right shoulder and arm pain. (Tr. 329). At that time, Plaintiff was reported as
having full range of motion of her right shoulder. (Tr. 329). By July 1, 2003, Dr. Kendrick
reported that her medications seemed to be helping her, and her obesity was noted. (Tr. 330). On
September 29, 2003, Plaintiff was complaining of pain behind her right knee. (Tr. 333), and a
right leg Doppler study revealed a Baker’s cyst. (Tr. 327). On October 7, 2003, Dr. Kendrick
referred Plaintiff to an orthopedist. (Tr. 335). On November 7, 2003, orthopedist Dr. B. Raye
Mitchell, Jr. performed a right knee arthroscopy, partial medial and lateral meniscectomy, and
chondroplasty of medial femoral cyndyle and posterior patella. (Tr. 367). In a follow-up report
dated November 13, 2003, Dr. Mitchell noted that her range of motion was “actually quite good
today.” (Tr. 308). There are no further complaints of knee issues until September 22, 2011,
several years after the relevant time period. (Tr. 457).
The Court finds that a review of the record as a whole indicates there is substantial
evidence to support the ALJ’s credibility findings for the relevant time period.
C.

RFC Determination:

Plaintiff argues that the ALJ’s RFC finding that Plaintiff had the ability to perform less
than a full range of sedentary work during the relevant time period is not supported by

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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.
The ALJ gave no weight to the medical records that documented treatment after the date
last insured. (Tr. 18). One of these records is that of Dr. Kendrick dated May 2, 2012, who
reported that “[d]ue to the summation of this patient’s many medical problems as listed below,
it is my opinion that she is unable to be gainfully employed.” (Tr. 432). Clearly, this is dated
nine years after the end of the relevant time period. Further, the ultimate question of disability
is reserved for the ALJ. House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007). The Court also
notes that the records reflect a five year gap in treatment between 2004 and 2009. (Tr. 343, 404).
The ALJ gave some weight to the state agency physicians. (Tr. 18). He gave significant
weight to Dr. Robert Wilson’s opinion of August 11, 1998, restricting Plaintiff to sedentary work
and further limiting Plaintiff with appropriate postural and overhead lifting restrictions. (Tr. 18).

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The ALJ also recognized Plaintiff’s mental impairments by limiting her to simple, repetitive
tasks with supervision that is simple, direct, and concrete in nature. (Tr. 18).
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s RFC determination.
D.

Hypothetical Question to VE:

Plaintiff argues that the ALJ erred in not including additional exertional and nonexertional impairments during the period in question in his hypothetical question to the VE. At
the hearing, the ALJ posed the following hypothetical to the VE:
Q: I would like you to assume a hypothetical person at the date last
insured was a younger individual, high school education or GED
education rather. This person cannot return to any of the past work you
just told me about and there are no transferable skills. The person can
occasionally lift and carry 10 pounds, frequently less; sit for six hours in
a day; stand/walk for two; occasionally climb, balance, crawl, kneel,
stoop, crouch; occasionally work overhead. That’s the first hypothetical.
Would there be work in the economy that person could do?
(Tr. 49). In response, the ALJ testified that the jobs of bench final assembler in optical goods,
zipper machine operator, and hand packagers, would be available. (Tr. 49-50).
The Court finds that the hypothetical the ALJ posed to the VE 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 VE’s
response to the hypothetical question posed by the ALJ constitutes substantial evidence
supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude her from
performing the jobs of bench final assembler, zipper machine operator, and hand packager.
Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on
properly phrased hypothetical question constitutes substantial evidence).
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IV.

Conclusion:
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 Plaintiff’s Complaint should be, and is hereby, dismissed with prejudice.
IT IS SO ORDERED this 8th day of October, 2014.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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