Fuentes v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on November 18, 2015. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
VELIA J. FUENTES
PLAINTIFF
V.
NO. 14-5325
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Velia J. Fuentes, 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.
I.
Procedural Background:
Plaintiff filed her current applications for DIB and SSI on December 16, 2011,
alleging an inability to work since February 1, 2011, due to diabetes, kidneys, eye sight, and
left leg. (Tr. 147-156, 181, 185).
By written decision dated July 19, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe – insulin
dependent diabetes mellitus with proliferative retinopathy and renal insufficiency, and
obesity. (Tr. 13).
However, after reviewing all of the evidence presented,
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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 light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
she is unable to perform jobs which involve repetitive fingering and handling
but could perform jobs requiring frequent fingering and handling.
(Tr. 14). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff could perform her past relevant work as a waitress and
childcare worker. (Tr. 18).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on August 20, 2014. (Tr. 1-5). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 6). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
9-11).
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
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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 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
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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) The ALJ erred in failing to
consider all of Plaintiff’s impairments in combination; 2)The ALJ erred in his credibility
analysis; 3) The ALJ erred in his RFC determination when finding Plaintiff could perform
light work and her past relevant work; 4) The ALJ erred in failing to fully and fairly develop
the record. (Doc. 9).
A. Consideration of Plaintiff’s impairments in combination:
Plaintiff argues that the ALJ did not consider her allegations of bladder pain and
infections, hand and leg problems, pelvic pain, low back pain, shoulder pain, headaches,
difficulty sleeping, and her obesity. 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” 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
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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:
Plaintiff argues that the ALJ disregarded Plaintiff’s subjective complaints of pain and
offered no explanation for why he found her testimony not to be credible. 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).
In his decision, the ALJ concluded 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 entirely credible for the reasons explained in his decision. (Tr. 16). The ALJ noted that
she was able to care for her two small daughters, take them to and from school and school
activities and help them with their personal care; go to fun parks on weekends with her
daughters and nieces; and attend church group every Tuesday. (Tr. 15). The ALJ also noted
that Plaintiff was not compliant with her medications. (Tr. 16-17). “Failure to follow a
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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 contends she was not compliant because she could not afford the
medications. However, there is no indication that she was ever denied treatment due to lack
of finances, and there is no evidence that her treating physicians refused to provide her with
treatment due to lack of money.
In addition, the record reflects that Plaintiff was
noncompliant with treatment from 2004 through 2012, when she had medical insurance
through her ex-husband’s insurance. (Tr. 38, 40).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility findings.
C. RFC Determination:
Plaintiff argues that the ALJ neglected to consider all of her physical impairments and
failed to determine the physical and mental demands of Plaintiff’s past relevant work, and
that he erred in finding Plaintiff could perform a limited range of light work. 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
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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 13-4087MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
In his decision, the ALJ noted that Plaintiff was diagnosed with diabetes in 1994, and
was insulin dependent, and was also diagnosed with severe proliferative diabetic retinopathy
in 2004, requiring panretinal laser treatment in both eyes. (Tr. 16).
He discussed her
subsequent follow-up exams, and the fact that on exam in May of 2007, Plaintiff reported
that her diabetes was under good control and her vision was 20/30-1 in the right eye and
20/25+1 in the left eye. (Tr. 16). The ALJ further reported that Plaintiff’s subsequent random
blood sugar test was 585, and it was noted that she had very poorly controlled diabetes with
medication noncompliance. (Tr. 16). On December 2011, Plaintiff stated she had not been
taking her Lantus. (Tr. 17). The ALJ recognized that in April of 2012, Dr. Randel L. Saylor
examined Plaintiff’s eyes, and Dr. Saylor noted that Plaintiff’s vision was correctable to
20/20 in both eyes. The ALJ discussed Dr. Saylor’s findings at length, noting that Dr. Saylor
indicated her vision was “excellent” and that he opined that Plaintiff needed continuing care
from a retinal specialists because of risk of further problems from the diabetes. (Tr. 17). The
ALJ also addressed the fact that records received subsequent to the hearing revealed Plaintiff
was seen in May 2013 by Lature Hicks, APN, at the Free Clinic, to establish care, and
medications were then prescribed for diabetes and hypertension. (Tr. 17).
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The record contains a Case Analysis dated April 17, 2012, by Dr. Karmen Hopkins,
who examined the records and concluded the medical records supported a physical rating of
not severe. (Tr. 279). This assessment was affirmed by Dr. Steven Strode on June 26, 2012.
(Tr. 310). In his decision, the ALJ found Plaintiff was more limited than determined by the
state agency medical consultants. (Tr. 17). The ALJ recognized that Plaintiff had problems
related to her diabetes, but was not persuaded that she was totally disabled and unable to
perform work at a level consistent with his RFC. He stated further:
There is evidence of noncompliance with medication, and indication that the
claimant’s blood sugars are controlled with medication. Most recent vision
testing also revealed that her vision was excellent at the present time. Further,
her activities of daily living support a finding that she is capable of work at
the light level.
(Tr. 18).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s RFC determination that Plaintiff is capable of performing light work and her past
relevant work as a waitress and childcare worker.
D. Failure to Fully and Fairly Develop the Record:
Plaintiff argues that the ALJ should have ordered a general physical examination or
physical RFC Assessment to determine her limitations with her hands. 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,
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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”). “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-bycase 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).
In the May 1, 2013 record from the Free Clinic, there is no indication that Plaintiff
had any upper extremity weakness. (Tr. 333). In the May 2, 2012 record from Northwest
Medical Center, there is no indication that Plaintiff suffered from any extremity pain or
neurological weakness. (Tr. 282). As noted by Defendant, the ALJ is not required to order a
consultative evaluation of every alleged impairment. Matthews v. Bowen, 879 F.2d 422, 424
(8th Cir. l989).
The Court believes the existing medical sources contain sufficient evidence for the
ALJ to make a determination, and that the ALJ did not fail to fully and fairly develop the
record.
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
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is hereby affirmed. The Plaintiff’s Complaint should be, and is hereby, dismissed with
prejudice.
IT IS SO ORDERED this 18th day of November, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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