Kelley v. Social Security Administration Commissioner

Filing 21

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on September 12, 2014. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
BRIGHTY MARCELL KELLEY
V.

PLAINTIFF
NO. 13-5259

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Brighty Marcell Kelley, 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 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:
Plaintiff protectively filed her current applications for DIB and SSI on January 18, 2011,

alleging an inability to work since January 1, 2010, due to panic attack disorder, personality
disorder, irritable bowel syndrome (IBS), heart problem, degenerative disk disease (DDD), and
PTSD (post traumatic stress disorder). (Tr. 127-128, 134-140, 178, 190). An administrative
hearing was held on April 5, 2012, at which Plaintiff appeared with counsel and testified. (Tr.
40-60).
By written decision dated September 5, 2012, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - back disorder and mood disorder.
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(Tr. 24). 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. 24). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can occasionally climb, balance, kneel, stoop, crouch
and crawl. The claimant can understand, remember and carry out simple,
routine and repetitive instructions. She can respond to the usual work
situations and ordinary work changes. She can occasionally interact with
supervisors and co-workers and have no contact with the general public.
(Tr. 26). 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 compression molding machine tender, leather riveting machine operator, bottling line
attendant, and cannery worker. (Tr. 33-34).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 30, 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. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 19, 20).
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
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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
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

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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 presents the following issues on appeal: 1) Whether the ALJ erred in failing to

consider all of the Plaintiff’s impairments in combination; 2) Whether the ALJ erred in his
credibility analysis; 3) Whether the ALJ erred in his RFC determination; and 4) Whether the
ALJ erred in disregarding the opinions and findings of a primary treating physician.
A.

Consideration of Impairments in Combination:

Plaintiff argues that the ALJ disregarded her testimony regarding depression, anxiety,
panic attacks, difficulty sleeping, fatigue, difficulty with memory and concentration, suicidal
ideations, obesity, fibromyalgia, cervicalgia, cardiac dysrhythmia and palpitations, GERD, IBS,
and panic disorder with agoraphobia.
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. 23). 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. 23). The ALJ stated that at step three, he must
determine whether the Plaintiff’s “impairment or combination of impairments” meets or

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medically equals the criteria of an impairment listed in the relevant listings. (Tr. 23). 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. 24). 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 that the ALJ
considered all of Plaintiff’s impairments in combination.
B.

Credibility Analysis:

Plaintiff argues that the medical evidence of record clearly establishes Plaintiff’s
subjective allegations of pain, and that the ALJ determined that she suffered from a back
disorder, yet neglected to properly consider the level of pain associated with this debilitating
condition. 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. 2003).

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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 these symptoms were not credible to the extent
they were inconsistent with his RFC assessment. (Tr. 30). The ALJ noted that Plaintiff had mild
restriction in activities of daily living. (Tr. 25). He reported that Plaintiff lived in a house with
her family, picked up the house when she could and took her son to his events if necessary. (Tr.
25). She also cared for her pets, and the ALJ recognized that Plaintiff needed reminders to tend
to her personal needs and prepared simple meals. (Tr. 25). Her son and father helped her with
inside chores and she could drive a car and shop in stores for food, clothes and shoes. (Tr. 25).
In her undated Function Report - Adult, Plaintiff reported that she cleaned, did laundry for the
family, took care of her teenage sons, transported them places, and cooked simple meals. (Tr.
198). She also reported she fed, watered, and loved the pets, with help from her father and sons.
(Tr. 199). She reported that she went outside daily and shopped for groceries several times a
week. (Tr. 201). Plaintiff reported to Ozark Guidance Center staff psychiatrist, Dr. Maria Melo,
on January 27, 2012, that she exercised regularly. (Tr. 761). The ALJ also stated that he
considered Plaintiff’s subjective complaints of pain, the objective medical evidence, and the
other factors set forth in Polaski. (Tr. 33). The ALJ noted that Plaintiff’s daily activities were
not limited to the extent one would expect, given the complaints of disabling symptoms and
limitations. (Tr. 30). The ALJ also found that the record revealed that treatment had been
generally successful in controlling Plaintiff’s symptoms. (Tr. 30).
The Court finds that based upon the record as a whole, there is substantial evidence to
support the ALJ’s credibility findings.

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C.

RFC Determination and Weight Given Treating Physician’s Opinion:

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 the present case, the ALJ found that Plaintiff retained the RFC to perform light work
with certain limitations. (Tr. 26). He discussed Plaintiff’s medical records from Ozark Guidance
Center as well as the records of Plaintiff’s treating physicians, Dr. Ronald Bertram and Dr.
Robert Wilson. The ALJ further discussed the results of the MRI’s of Plaintiff’s cervical spine
and lumbar spine. (Tr. 28). During the relevant time period, Plaintiff saw various providers at
Ozark Guidance Center, with the primary staff psychiatrist being Dr. Melo. Plaintiff began
seeing Dr. Melo on February 5, 2010 (Tr. 568), and diagnosed Plaintiff as follows:
Axis I:

Panic Disorder, with Agoraphobia
Dysthymia
Major Depressive Disorder, Consider Recurrent, Mild to
Moderate
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Axis II:
Axis III:
Axis IV:
Axis V:

Deferred. Consider Avoidant Personality Traits
Fibromyalgia. Irregular heartbeat
Occupation, interpersonal
GAF 58

(Tr. 570).
On August 26, 2010, a record from Dr. Robert B. Wilson, Jr. indicates that Plaintiff was
needing a referral for a rheumatologist for her fibromyalgia. (Tr. 418). However, there is no
indication that Plaintiff ever saw a rheumatologist. It was also reported that Plaintiff had a
normal colonoscopy. (Tr. 419).
On April 26, 2011, non-examining consultant, Christal Janssen, Ph.D. , completed a
Mental RFC Assessment form. (Tr. 691-693). Dr. Janssen found that Plaintiff was moderately
limited in nine categories and not significantly limited in eleven categories. (Tr. 691). Dr.
Janssen also reported that Plaintiff’s activities of daily living indicated some problems with pain,
mood and social withdrawal, but that Plaintiff cared for her kids, managed self care and
medications, cooked, did chores, drove, shopped, managed finances, and spent time with her
family. Dr. Janssen concluded that Plaintiff appeared to be able to perform simple/repetitive
work with incidental interpersonal contact and direct/concrete supervision (Unskilled). (Tr. 693).
Dr. Janssen also completed a Psychiatric Review Technique form on April 26, 2011, and
concluded that Plaintiff had a mild degree of limitation in restriction of activities of daily living
and a moderate degree of limitation in difficulties in maintaining social functioning and in
maintaining concentration, persistence, or pace, and had no episodes of decompensation, each
of extended duration. (Tr. 702-707).
On May 23, 2011, a Physical RFC Assessment form was completed by non-examining
consultant, Dr. Bill F. Payne. (Tr. 711-718). Dr. Payne found that Plaintiff was capable of
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performing medium work. (Tr. 712).
On July 26, 2011, Dr. Sharon Keith affirmed Dr. Payne’s assessment and on July 28,
2011, Jerry R. Henderson, Ph.D., affirmed Dr. Janssen’s assessment. (Tr. 728).
On October 17, 2011, Dr. Melo noted that Plaintiff had some ups and down, and that her
depression was better, but Plaintiff was forgetting to take her evening dose of Paxil. (Tr. 763).
By letter dated April 23, 2012 to the Social Security Administration, Dr. Melo stated that
Plaintiff’s symptoms were controlled in part by the medications, but that her functioning had not
risen above the described level. (Tr. 818). Dr. Melo reported that Plaintiff’s depression colored
all aspects of her life and was present every day, all day. (Tr. 818). Dr. Melo also noted that
Plaintiff also experienced anxiety and panic daily, which were “incredibly disabling.” (Tr. 819).
She stated that in her opinion the functional limitations imposed by Plaintiff’s mental illnesses
were incompatible to work and that failure to adapt to the stressful circumstances of a work
setting would certainly cause her condition to deteriorate and exacerbate all of her symptoms.
(Tr. 819).
One month later, on May 23, 2012, Terry L. Efird, Ph.D., performed a Mental Diagnostic
Evaluation. (Tr. 821-824). Dr. Efird diagnosed Plaintiff as follows:
Axis I:
Axis II:
Axis V:

panic disorder, with agoraphobia; major depressive
disorder, moderate
borderline personality disorder
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(Tr. 823). Dr. Efird reported that Plaintiff’s current medications were described as having been
beneficial and that no obstacles to treatment were reported. (Tr. 822). Dr. Efird also reported that
the ability to perform basic self-care tasks independently was endorsed, and the ability to
perform household chores adequately was described as impaired to some extent by struggling
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with motivation. (Tr. 822). Plaintiff estimated the use of alcohol was estimated at a six pack of
beer every other weekend. (Tr. 822). Dr. Efird concluded that Plaintiff endorsed the ability to
drive unfamiliar routes; shop independently; handle personal finances adequately; and perform
most activities of daily living adequately. (Tr. 824). Dr. Efird also concluded that Plaintiff
communicated and interacted in a reasonably socially adequate manner and in a reasonably
intelligible and effective manner, had the capacity to perform basic cognitive tasks required for
basic work like activities, and was able to track and respond adequately for the purposes of the
evaluation; could generally complete most tasks during the evaluation; and completed most tasks
within an adequate time frame and appeared to be capable of performing basic work like tasks
within a reasonable time frame. (Tr. 824).
Subsequent to the ALJ’s decision, Dana Ilie-Stout, LCSW, at Ozark Guidance, updated
Plaintiff’s Disability and Treatment by letter dated September 26, 2012, and stated that Plaintiff
would be unable to hold any meaningful employment as a result, and recommend that she be
awarded SSI. (Tr. 255). Ms. Ilie-Stout also completed a Medical Assessment of Ability to do
Work-Related Activities (Mental) on September 26, 2012. (Tr. 256-258).
In his decision, the ALJ considered the opinion of Dr. Efird and found it to be supported
by the objective medical evidence of record and his examination of the Plaintiff. (Tr. 31). The
ALJ also considered and discussed Dr. Melo’s opinion, and found it to be more limiting than the
objective medical evidence of record would support. (Tr. 31). He explained that Dr. Melo
“apparently relied quite heavily on the subjective report of symptoms and limitations provided
by the claimant, and seemed to accept uncritically as true most, if not all, of what the claimant
reported.” (Tr. 31-32). The ALJ believed there existed good reasons for questioning the

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reliability of Plaintiff’s subjective complaints, and that the notes from the Ozark Guidance
Center indicated Plaintiff was making progress toward her goals when she was consistent with
her therapy and medications. (Tr. 32). The ALJ stated that there was nothing in Plaintiff’s
records from Ozark Guidance to support the severe limitations that Dr. Melo cites in her letter.
(Tr. 32). He concluded that to the extent her opinion was consistent with the medical evidence
of record and Plaintiff’s testimony, he incorporated those limitations into the Plaintiff’s RFC as
assessed. (Tr. 32).
The ALJ also considered and addressed the opinions given by the state agency
consultants, Dr. Cristal Janssen and Dr. Bill Payne, and gave them great weight, but reduced
Plaintiff’s exertional level to light work, rather than medium work, as recommended by Dr.
Payne. (Tr. 32). The ALJ gave Dr. Melo’s opinion little weight. (Tr. 33). “A treating source's
opinion is to be given controlling weight where it is supported by acceptable clinical and
laboratory diagnostic techniques and where it is not inconsistent with other substantial evidence
in the record.” Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.2003), paraphrasing 20 C.F.R.
§ 404.1527(d)(2). When a treating source's opinion is not controlling, it is weighed by the same
factors as any other medical opinion: the examining relationship, the treatment relationship,
supporting explanations, consistency, specialization, and other factors. See 20 C.F.R. §
404.1527(d). Lehnartz v. Barnhart, 142 Fed.Appx. 939, 940, 2005 WL 1767944, 1 (C.A.8
(Minn. (C.A.8 (Minn.),2005). House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007)(holding that
a treating physician’s opinion that a claimant is disabled and cannot be gainfully employed gets
no deference because it invades the province of the Commissioner to make the ultimate
disability determination). In this case, the ALJ gave sufficient reasons as to why he gave Dr.

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Melo’s opinion little weight. In addition, the Court is of the opinion that even if the ALJ had
before him the letter and assessment of Dana Ilie-Stout, LCSW, it would not have changed his
decision, as Ms. Stout was not an acceptable medical source, and the ALJ is to make the ultimate
disability determination. The Court finds that there is substantial evidence to support the ALJ’s
RFC determination and the weight he gave to the various opinions.
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 12th day of September, 2014.

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

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