Hancock v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 13, 2015. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
TESHA S. HANCOCK

PLAINTIFF

v.

CIVIL NO. 14-5216

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Tesha S. Hancock, 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) benefits 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 July 21, 2011, alleging an

inability to work due to Hepatitis C, non-epileptic seizures, and anxiety. (Tr. 132, 160). An
administrative hearing was held on January 17, 2013, at which Plaintiff appeared with counsel
and testified. (Tr. 29-70).
By written decision dated May 10, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14).
Specifically, the ALJ found Plaintiff had the following severe impairments: Hepatitis C;
pseudoseizures; a depressive disorder, not otherwise specified (NOS); a generalized anxiety

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disorder/cannabis-induced anxiety disorder; a social anxiety disorder; a conversion disorder; and
a personality disorder (NOS). 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 medium work as defined in 20 CFR 416.967(c) except she must avoid
even moderate exposure to hazards, including no driving as part of work. The
claimant is further able to perform work where interpersonal contact is incidental
to the work performed, the complexity of tasks is learned and performed by rote,
with few variables and use of little judgment, and the supervision required is
simple, direct, and concrete.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as an industrial cleaner, and a hand packer. (Tr. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 6, 2014. (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. (Doc. 10; Doc. 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.
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

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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)(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
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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. § 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 argues the following issues on appeal: 1) the ALJ erred in failing to consider

Plaintiff’s impairments in combination; 2) the ALJ erred in his analysis and credibility findings
with regard to Plaintiff’s subjective complaints of pain; 3) the ALJ erred in determining Plaintiff
retains the RFC to perform a limited range of medium work; and 4) the ALJ erred in failing to
fully and fairly develop the medical record.
A.

Combination of Impairments:

Plaintiff argues that the ALJ erred in failing to consider all of the claimant’s impairments
in combination.
The ALJ stated that in determining Plaintiff’s RFC, he considered “all of the claimant’s
impairments, including impairments that are not severe.” (Tr. 13). The ALJ further found that
the Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Tr. 14). Such language demonstrates the ALJ considered
the combined effect of Plaintiff’s impairments. Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
B.

Subjective Complaints and Credibility Analysis:

We now address the ALJ's assessment of Plaintiff's subjective complaints. The ALJ was
required to consider all the evidence relating to Plaintiff’s subjective complaints including
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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
United States Court of Appeals for the Eighth Circuit 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).
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. As noted by the ALJ, a review of the record revealed
that Plaintiff was able to take care of her two children; to feed and give water to her pets without
help; to take care of her personal needs, noting that sometimes caring for her hair was impacted
by her arms giving out; to prepare meals; to perform household chores; to walk; to drive short
distances; to shop for groceries and household needs; to watch television; and to talk on the
phone. (Tr. 168-175). In September of 2011, Plaintiff reported to Dr. Terry Efird that she was
able to drive unfamiliar routes, but noted she could not read a map; that she could shop
independently, but noted she would experience anxiety; that she could perform activities of daily
living adequately, but tired a bit quicker; that she would visit with her sister every other
weekend; and that she visited her neighbor to some extent on a daily basis. (Tr. 288). At the
administrative hearing, Plaintiff testified that she worked on a call-in basis at the school in the
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cafeteria preparing meals for the students, noting she had been called to work about seven times
since October of 2012. (Tr. 44, 47, 57). Plaintiff testified that when she works in the cafeteria
she will be at work at 6:45 in the morning, and get home around 1:30 in the afternoon1. (Tr. 53,
57). Plaintiff also testified that if she needed to go to the store for a drink or to go visit her
friend, she would walk. (Tr. 59).
With respect to Plaintiff’s mental impairments, the ALJ noted that in March of 2012, Dr.
Jack Edmisten, of Ozark Guidance, evaluated Plaintiff and stated as follows:
I discussed with [the] patien[t] that MJ [marijuana] can cause her Anxiety
disorder; however, she desires to continue to use and I explained that I feel it
would not help to medicate her as long as she continues to sm,oke (sic) MJ..She
is unwilling to give it up. Therefore, I feel using meds would be useless. She
does admit it causes anxiety only on occasion.
(Tr. 388). Plaintiff reported to Dr. Edmisten that she smoked marijuana when her children were
at school or after they had gone to bed. (Tr. 387). In assessing Plaintiff’s credibility, the ALJ
properly noted the inconsistencies between Plaintiff’s report to Dr. Edmisten that she used
marijuana daily, and the other medical evidence wherein Plaintiff denied the use of illegal
substances for the past seven years both prior to and after her examination with Dr. Edmisten.
(Tr. 356, 359). With respect to Plaintiff’s alleged fatigue and concentration issues, a review of
the record revealed that Plaintiff, on more than one occasion, denied feeling down, feeling tired
or having little energy, having trouble sleeping, or having trouble concentrating. (Tr. 353, 356,
433, 437). It is also noteworthy, the Dr. Margaret Rutherford noted that it was significant that

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The Court notes that at the administrative hearing, the ALJ requested that Plaintiff’s counsel submit pay-stubs
for Plaintiff’s work at Sonic, and the Huntsville School District. (Tr. 68). Plaintiff testified she would be paid
$45.00 per day for this work. (Tr. 47). One pay-stub from the Huntsville School District was submitted twice,
and it indicates Plaintiff worked for 2.0 hours for $90.00, for the pay period of October 31, 2012. (Tr. 157-158).

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Plaintiff’s seizure-like episodes stopped when Plaintiff had a good relationship with the therapist.
(Tr. 429).
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that
lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or
hospitals does not support plaintiff’s contention of financial hardship). The record further
revealed that Plaintiff was able to come up with the funds to support her cigarette smoking habit
during the relevant time period.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
C.

The ALJ’s RFC Determination:

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
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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 considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical records
when he determined Plaintiff could perform medium work with limitations. 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.
Plaintiff's capacity to perform medium work with limitations is also supported by the fact that
the medical evidence does not indicate that Plaintiff's examining physicians placed restrictions
on her activities that would preclude performing the RFC determined. See Hutton v. Apfel, 175
F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed restrictions militates against a finding
of total disability). Accordingly, the Court finds there is substantial evidence of record to
support the ALJ’s RFC findings.
D.

Fully and Fairly Develop the Record:

While an ALJ is required to develop the record fully and fairly, see Freeman v. Apfel,
208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative examination only when it is
necessary for an informed decision), the record before the ALJ contained the evidence required
to make a full and informed decision regarding Plaintiff’s capabilities during the relevant time
period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir.2004) (ALJ must develop

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record fully and fairly to ensure it includes evidence from treating physician, or at least
examining physician, addressing impairments at issue).
E.

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 an industrial cleaner, and
a hand packer, during the time period in question. 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 13th day of July, 2015.

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

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