Martens v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 15, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DEBRA EDMONDSON MARTENS
V.

PLAINTIFF

NO. 14-5228

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Debra Edmondson Martens, 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 filed her current applications for DIB and SSI in January of 2012, alleging an

inability to work since November 3, 2008, due to ADHD, Celiac disease, depression,
paranoia, and hearing voices at night. (Tr. 119-133, 176, 180). An administrative hearing
was held on February 13, 2013, at which Plaintiff appeared with counsel and testified. (Tr.
27-48).
By written decision dated March 20, 2013, the ALJ found that during the relevant
time period, Plaitniff had an impairment or combination of impairments that were severe –

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arthralgias; major depressive disorder; generalized anxiety disorder; and attention deficit
hyperactivity disorder (ADHD). (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 Plaintiff retained the residual functional
capacity (RFC) to:
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
and 416.967(c) except work limited to simple, routine, and repetitive tasks,
involving only simple, work-related decisions, with few, if any, workplace
changes, and no more than incidental contact
with
co-workers,
supervisors and the general public.
(Tr. 16). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be unable to perform her past relevant work, but that
there were other jobs Plaintiff would be able to perform, such as dishwasher, warehouse
laborer, and machine packager. (Tr. 19, 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on July 1, 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. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 10).
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:

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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 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.

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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 RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following issues in this matter: 1) Whether the ALJ erred in

failing to consider all of 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 failing to fully and fairly develop the medical record. (Doc. 8).
A. Consideration of 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. 12). 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. 12). The ALJ stated that at step three,
he must determine whether the Plaintiff’s “impairment or combination of impairments”
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meets or medically equals the criteria of an impairment listed in the relevant listings. (Tr.
12). 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).
B. 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 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).
Plaintiff argues that the ALJ neglected to properly address her subjective complaints
of pain and that he offered no explanation for why he found her testimony not to be credible.
The Court disagrees. In his decision, the ALJ offered several explanations as to why the
record did not entirely support Plaintiff’s allegations with respect to her impairments. He
noted: Plaintiff’s inconsistent statements as to when she quit smoking marijuana; Plaintiff’s
report that she did not like being around people but worked at a help desk where she spoke to
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people by phone; and Plaintiff’s inconsistent statements regarding the grades she received in
college. (Tr. 18). The ALJ also discussed Plaintiff’s activities of daily living, noting that
during the relevant time period, Plaintiff reported she went to school, worked, took care of
her dogs, took care of her own personal care, prepared meals, did laundry, dusted, drove a
car, painted, watched television, and shopped for food by computer. (Tr. 17). The ALJ also
discussed Plaintiff’s medications. (Tr. 17).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
C. 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 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 is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-40876

MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
Plaintiff argues that she is unable to perform a limited range of medium work, and
that the ALJ reached his RFC determination without obtaining a Physical RFC Assessment
or a general physical examination to support his conclusion.
The ALJ carefully addressed the medical evidence of record, and concluded that the
objective findings failed to provide strong support for Plaintiff’s allegations of disabling
symptoms and limitations. (Tr. 17). He pointed out that Plaintiff had been diagnosed with
arthralgias, with complaints of occasional joint pain that had been treated with medication,
and that on examination in April 2012, Plaintiff had a grossly normal range of motion of the
extremities with no edema. (Tr. 17, 360). She was prescribed Naprosyn Tablets for her
arthralgias. (Tr. 361). She also continued to smoke at that time and was supposed to contact
the smoke cessation program. (Tr. 361). When Plaintiff was seen at the Community Clinic on
May 14, 2012, it was reported that Plaintiff was starting to walk her dogs three days a week,
and it was recommended that she exercise three to four days a week for thirty minutes or
more at the minimum. (Tr. 358).
On March 7, 2012, non-examining physician, Dr. James Wellons, completed a Case
Analysis, where he concluded that the available records did not reveal a severe residual
somatic impairment. (Tr. 309).

This finding was affirmed on June 18, 2012, by non-

examining physician, Dr. Karmen Hopkins. (Tr. 378). In his decision, the ALJ gave this
opinion little weight, “because the medical evidence of record supports a finding that the
claimant’s arthralgias is [sic] a severe medically determinable impairment.”

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(Tr. 19).

However, the ALJ found that Plaintiff’s credibility was weakened by the objective medical
evidence, and that although Plaintiff did experience some levels of pain and limitations, such
was only to the extent described in his RFC. (Tr. 19).
With respect to Plaintiff’s mental impairments, the ALJ discussed the findings of Dr.
Terry Efird, who examined Plaintiff on March 26, 2012. (Tr. 311-315). Dr. Efird diagnosed
Plaintiff as follows:
Axis I:

Major depressive disorder moderate to severe; generalized anxiety
disorder; ADHD NOS

Axis II:

Deferred

Axis V:

45-55

(Tr. 314). Although Dr. Efird found Plaintiff would have a marked difficulty with immediate
auditory attention span, which would impair cognitive efficiency as well, he found Plaintiff
had the capacity to perform basic cognitive tasks required for basic work like activities. (Tr.
314). Dr. Efird also noted that there were no remarkable problems with persistence during
the evaluation. (Tr. 315). The Court believes the RFC limitation for unskilled work takes
into consideration Plaintiff’s mental impairments.
A Psychiatric Review Technique Report was completed by Christal Janssen, Ph.D.,
on March 30, 2012. (T.r 319-329). Dr. Janssen found Plaintiff had mild degree of limitation
in activities of daily living and a moderate degree of limitation in maintaining social
functioning and maintaining concentration, persistence, or pace, and had no episodes of
decompensation, each of extended duration. (Tr. 329). Dr. Janssen also found that despite
her mood symptoms, Plaintiff’s activities of daily living and objective evidence did not
support marked impairments, and her unskilled rating was affirmed. (Tr. 334).

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On December 26, 2012, Dana Ilie-Stout, LCSW, of Ozark Guidance Center,
completed a Mental RFC. (Tr. 454-457). Ms. Stout found Plaintiff had several mental
limitations in her ability to function in the workplace. The ALJ gave Ms. Stout’s opinion
little weight, “as it is generally more restrictive than what is supported by the medical
evidence of record and the findings of the consultative examiner.” (Tr. 19). The Court also
notes that the little weight given to Ms. Stout’s opinion is supported by the fact that she is not
an acceptable medical source.

See 20 C.F.R. §§ 404.1513(d)(1), 404.1527(a)(2),

416.913(d)(1), and 416.927(a)(2).
The Court is of the opinion that the ALJ properly considered the medical records, her
inconsistent statements, and her daily activities, and based upon the record as a whole, the
Court finds there is substantial evidence to support the ALJ’s RFC determination, and the
weight he gave all of the opinions.
D. Failure to Fully and Fairly Develop the Record:
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47
F.3d 935, 938 (8th Cir. 1995); Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000). This is
particularly true when Plaintiff is not represented by counsel. Payton v. Shalala, 25 FG.3d
684, 686 (8th Cir. 1994). This can be done by re-contacting medical sources and by ordering
additional consultative examinations, if necessary. See 20 C.F.R. § 404.1512. The ALJ’s
duty to fully and fairly develop the record is independent of Plaintiff’s burden to press her
case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). However, the ALJ is not
required to function as Plaintiff’s substitute counsel, but only to develop a reasonably
complete record. See Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)(“reversal due to
failure to develop the record is only warranted where such failure is unfair or prejudicial”).
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“The regulations do not require the Secretary or the ALJ to order a consultative evaluation of
every alleged impairment. They simply grant the ALJ the authority to do so if the existing
medical sources do not contain sufficient evidence to make a determination.” Matthews v.
Bowen, 879 F.2d 423, 424 (8th Cir. 1989). “There is no bright line rule indicating when the
Commissioner has or has not adequately developed the record; rather, such an assessment is
made on a case-by-case basis.” Mans v. Colvin, No. 13-CV-2103, 2014 WL 3689797 at *4
(W.D. Ark., July 24, 2014)(quoting Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
Plaintiff argues that the ALJ should have obtained a Physical RFC Assessment or a
general physical examination. The record reveals that in 2009, Plaintiff lost her job at a bank
for being “too disruptive” after working there for nine years. (Tr. 297). In 2009, Plaintiff
performed caregiver services for an elderly couple and also cleaned up from an ice storm by
hauling brush. (Tr. 298). In 2011, Plaintiff attended school and received an associates degree
in graphic design. (Tr. 305). On October 10, 2011, x-rays of Plaintiff’s chest and abdomen
were negative. (Tr. 277-278). A right upper quadrant ultrasound was negative. (Tr. 279). A
CT of Plaintiff’s abdomen was normal with the exception of a small amount of fluid around
the liver, and tiny lesions in the liver were felt to represent small cyst or hemangiomas. (Tr.
280). A CT of Plaintiff’s pelvis revealed a thickened edematous appearance of the terminal
ileum was present with a small amount of adjacent free fluid, and was consistent with
inflammatory bowel disease likely regional enteritis. (Tr. 280).
Plaintiff began working part-time at a student help desk in 2011 and continued to
work there through the date of the ALJ’s decision. (Tr. 181). Plaintiff was seen on February
27, 2012, by an APN at Community Clinic for a routine gynecological exam. (Tr. 362). She

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was seen by another APN at the Communicty Clinic on April 3, 2012, and was diagnosed as
follows:
1)
2)
3)
4)
5)

Celiac disease
Tobacco Use Disorder
Arthralgias
Dental Disease NOS
Hyperlipidemia

(Tr. 360). No restrictions were placed on Plaintiff by the medical care providers. As stated
earlier, on May 14, 2012, Plaintiff was seen at Community Clinic for dietary counseling and
reported walking her dogs three days a week. (Tr. 358). She was also encouraged to exercise
three to four days a week for 30 minutes or more at the minimum. (Tr. 358). “In the absence
of other evidence in the record, a physician’s unrestricted recommendations to increase
physical exercise are inconsistent with a claim of physical limitations.” Myers v. Colvin, 721
F.3d 521, 526 (8th Cir. 2013).
Based upon the record as a whole, the Court finds the record was sufficiently
developed for the ALJ to make a physical RFC determination.
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 15th day of July, 2015.

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