Breeden v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 6, 2015. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

TAMI BREEDEN

PLAINTIFF

v.

CIVIL NO. 13-5244

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tami Breeden, 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) benefits under the provision 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:
The application for DIB presently before this Court was protectively filed on May 7,

2007, alleging an inability to work since November 1, 2006, due to a back problem, hepatitis C,
a heart problem, migraines, post traumatic stress disorder (PTSD), panic attacks, depression, and
arthritis in the hands. (Tr. 223, 247, 314). An administrative hearing was held on May 15, 2009,
at which Plaintiff appeared with counsel and testified. (Tr. 36-61).
In a written decision dated December 14, 2009, the ALJ found that Plaintiff retained the
residual functional capacity (RFC) to perform light work with limitations. (Tr. 90-98). On May
12, 2011, the Appeals Council remanded Plaintiff’s case back to the ALJ for further review. (Tr.

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104-108). The Appeals Council further noted that Plaintiff had filed subsequent DIB and SSI
applications on February 22, 2010, which were to be associated with the applications already
under review. (Tr. 107). In Plaintiff’s subsequent applications, she alleged an inability to work
due to back problems, hepatitis C, heart problems, and anxiety. (Tr. 361).
On April 19, 2012, a supplemental hearing before the ALJ was held, at which Plaintiff
appeared with counsel and testified. (Tr. 62-84). Plaintiff, through her counsel, amended her
alleged onset date to April 30, 2007. (Tr. 14, 67). For DIB purposes, Plaintiff maintained
insured status through December 31, 2012. (Tr. 265).
By written decision dated May 25, 2012, the ALJ found that Plaintiff had an impairment
or combination of impairments that were severe. (Tr. 17). Specifically, the ALJ found Plaintiff
had the following severe impairments: lumbar spine degenerative disc disease; headaches;
osteoarthritis in the hands/wrists; hepatitis C; major depressive disorder and/or bipolar II
disorder; anxiety disorder; pain disorder associated with both psychological factors and a general
medical condition, chronic; and a personality disorder. 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. 17). The ALJ found Plaintiff retained the RFC to:
lift and/or carry 10 pounds occasionally and less than 10 pounds frequently, sit
six hours and stand/walk two hours. In addition, she can frequently handle and
finger, and she can occasionally climb, balance, crawl, kneel, stoop and crouch.
Further, she can understand, remember and carry out simple, routine and repetitive tasks,
respond to usual work situations and occasionally interact with supervisors, coworkers and the
general public.
(Tr. 19). With the help of vocational expert testimony, the ALJ found Plaintiff could perform
work as a lamp shade assembler, a machine zipper trimmer, a copy examiner, a nut sorter, a tile
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table worker, and an escort vehicle driver. (Tr. 25).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on August 24, 2013. (Tr. 1-6). Plaintiff now seeks judicial review of that
decision. (Doc. 1). Both parties filed appeal briefs, and this case is before the undersigned
pursuant to the consent of the parties. (Doc. 7; Doc. 12; Doc. 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. 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

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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)(c). 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 has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing
past relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §§ 404.1520, 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. §§ 404.1520, 416.920.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in determining Plaintiff

did not meet Listing 1.04A; 2) the ALJ failed to evaluate the medical opinions correctly; 3) the
ALJ erred in discrediting Plaintiff’s subjective complaints; and 4) the ALJ’s decision is not
based on substantial evidence.

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A.

Evaluation of the Listed Impairment 1.04A:

The burden of proof is on the Plaintiff to establish that her impairment meets or equals
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria for
the one most similar listed impairment”).
The Court finds, based upon the record as a whole, as well as the well-stated reasons
outlined in the Defendant’s brief, that Plaintiff’s argument is without merit, and there was
sufficient evidence for the ALJ to make an informed decision. Therefore, the Court finds there
is sufficient evidence to support the ALJ’s determination that Plaintiff did not meet a Listing.
B.

RFC Assessment and Treating and Examining Medical Opinions:

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).

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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 [social security] regulations provide that a treating physician's opinion ... will be
granted ‘controlling weight,’ provided the opinion is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.2000) (citations
omitted). An ALJ may discount such an opinion if other medical assessments are supported by
superior medical evidence, or if the treating physician has offered inconsistent opinions. Id. at
1013. Whether the weight accorded the treating physician's opinion by the ALJ is great or small,
the ALJ must give good reasons for that weighting. Id. (citing 20 C.F.R. § 404.1527(d)(2)).
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. The Court further notes that in determining Plaintiff could perform
sedentary work with limitations, the ALJ specifically discussed the relevant medical records, the
medical opinions of non-examining medical professionals, and the medical opinions of treating
and examining medical professionals including, Drs. John Kendrick, C.R. Magness., and Terry
L. Efird, and set forth the reasons for the weight given to the opinions. Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the
opinions of various treating and examining physicians”)(citations omitted). With regard to the
November 20, 2007, and April 20, 2010, opinions of Dr. Kendrick, the ALJ specifically

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addressed these opinions and found Dr. Kendrick’s findings to be inconsistent with his own
medical records and the medical evidence as a whole. Davidson v. Astrue, 501 F.3d 987, 99091 (8th Cir. 2007) (finding ALJ correctly discounted a physician’s assessment report when his
treatment notes contradicted the report). In the most recent assessment, Dr. Kendrick indicated
that Plaintiff suffered from migraines, chronic low back pain that radiated down the left leg and
foot, and constant left foot numbness that caused Plaintiff trouble with performing activities of
daily living. A review of Dr. Kendrick’s treatment notes indicate that Plaintiff’s musculoskeletal
and extremity examinations were essentially normal numerous times during the relevant time
period. The record also revealed that Plaintiff had a normal gait and denied motor weakness
or sensory problems on numerous occasions during the relevant time period. While there were
occasions noted when Plaintiff reported some trouble with performing activities of daily living,
the Court points out that on some of these occasions Plaintiff had been drinking alcohol or had
smoked marijuana prior to seeking treatment.

The record revealed that Plaintiff more

consistently reported the ability to perform activities of daily living independently during the
relevant time period. Based on the record as a whole, the Court finds substantial evidence to
support the ALJ’s RFC determination.
C.

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

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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, 314 F.3d at 966.
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. A review of the record revealed that in November of
2007, Plaintiff reported that she could help with some household chores; that she could take care
of her personal needs; that she could help prepare simple meals; and that she could shop in
stores. (Tr. 298-305). In March of 2010, Plaintiff reported she was able to take care of her
personal needs; to prepare simple meals; to do some household chores; to drive sometimes; and
to read and watch television daily. (Tr. 372-379). Throughout the relevant time period, Plaintiff
reported that she was able to perform activities of daily living independently. Plaintiff also
reported increased back pain after riding a four-wheeler in March of 2010, and in November of
2011, Plaintiff reported that she enjoyed singing at her church and riding motorcycles. (Tr.
2686, 2915). In May of 2010, Dr. Efird noted that Plaintiff indicated that she was able to drive
unfamiliar routes; to shop independently; to handle personal finances; to perform activities of
daily living adequately but noted pain at times; to attend church; and to visit friends, and go on
dates occasionally. (Tr. 2535).
Therefore, although it is clear that Plaintiff suffers with some degree of pain, she has not
established that she is unable to engage in any gainful activity. See Craig v. Apfel, 212 F.3d
433, 436 (8th Cir. 2000) (holding that mere fact that working may cause pain or discomfort does

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not mandate a finding of disability). Accordingly, the Court concludes that substantial evidence
supports the ALJ’s conclusion that Plaintiff’s subjective complaints were not totally credible.
D.

Hypothetical Question to the Vocational Expert:

After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert 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 vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion
that Plaintiff's impairments did not preclude her from performing work as a lamp shade
assembler, a machine zipper trimmer, a copy examiner, a nut sorter, a tile table worker, and an
escort vehicle driver, during the relevant time period. Pickney v. Chater, 96 F.3d 294, 296 (8th
Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical question
constitutes substantial evidence).
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.
DATED this 6th day of February, 2015.

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