Hingle v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 3, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KERRI ELLEN HINGLE

PLAINTIFF

V.

NO. 15-5127

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

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kerri Ellen Hingle, 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 July 27, 2012,

alleging an inability to work since February 15, 2012, due to bipolar disorder, depression,
fibromyalgia, neuropathy, bursitis, HPV pre cervical cancer, inflammation of the colon,
social anxiety disorder, and anger problems. (Doc. 13, pgs. 180-188, 206, 220). An
administrative hearing was held on September 26, 2013, at which Plaintiff appeared with
counsel and testified. (Doc. 13, pgs. 34-52).

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By written decision dated November 5, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
obesity, fibromyalgia, post-traumatic stress disorder, and depressive disorder with anxiety.
(Doc. 13, p. 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. (Doc.
13, p. 15). 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 is able to perform work that is 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.
(Doc. 13, p. 16). With the help of the vocational expert (VE), the ALJ determined that during
the relevant time period, Plaintiff would not be able to perform her past relevant work, but
there were other jobs she would be able to perform, such as machine tender and housekeeper.
(Doc. 13, p. 23).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on March 26, 2015. (Doc. 13, pgs. 5-10). 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. 11, 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:

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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). 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). 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. §§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 RFC. See McCoy
v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§404.1520, 416.920,
abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20
C.F.R. §§ 404.1520, 416.920.
III.

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

accord adequate weight to the opinion of Plaintiff’s treating physician; 2) Whether the ALJ
erred in his evaluation of the opinion of Dr. Catherine Adams; and 3) Whether the ALJ erred
in failing to inquire whether the VE’s testimony was consistent with the Dictionary of
Occupational Titles (DOT). (Doc. 11).
A. 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)

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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 found 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. (Doc. 13, p. 23). He discussed her activities of daily living, and the fact that she
could tend to her personal needs with no assistance, care for her pets, prepare her own meals
daily, clean her house every three days to once a week, mow the yard once every other
month, shop in stores for food every week, and spend time with others. (Doc. 13, p. 23). He
also noted that on November 24, 2012, Plaintiff was treated in the emergency department for
shoulder pain that started after she shoveled leaves and threw a football. (Doc. 13, p. 23). The
ALJ further observed that no physician placed any functional restrictions on her activities
that would preclude work activity with the previously mentioned restrictions. (Doc. 13, p.
23). The Court also notes that the ALJ correctly stated that Plaintiff had been non-compliant
at times with her medication. (Doc. 13, pgs. 123-24, 299, 393, 715). The ALJ also discussed
the fact that Plaintiff cited lack of resources as the reason she was not currently seeking
treatment. However, Plaintiff was somehow able to afford to smoke cigarettes, up to 1 pack
per day, and although doctors encouraged her to quit, she was not interested in doing so. This
also discredits her disability allegations. See Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir.

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2003). Plaintiff also admitted to marijuana use on July 21, 2013. (Doc. 13 at 676). In
addition, in a report dated April 5, 2013, Dr. Carlos Acosta, Plaintiff’s treating physician,
noted that Plaintiff saw Dr. Brown, and that in his notes, it was reported that there was no
plausible neurological explanation for Plaintiff’s collection of symptoms, and he would
consider the possibility of malingering. (Doc. 13, p. 714).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility analysis.
B.

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. Gilliam’s v. Barnhart, 3 93 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 13-4087-

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MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
With respect to weight given to the opinions of treating physicians, “[a] claimant’s
treating physician’s opinion will generally be given controlling weight, but it must be
supported by medically acceptable clinical and diagnostic techniques, and must be consistent
with other substantial evidence in the record.” Andrews v. Colvin, No. 14-3012, 2015 WL
4032122 at *3 (8th Cir. July 2, 2015)(citing Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir.
2014). “A treating physician’s opinion may be discounted or entirely disregarded ‘where
other medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the credibility of
such opinions.’” Id.

“In either case-whether granting a treating physician’s opinion

substantial or little weight-the Commissioner or the ALJ must give good reasons for the
weight apportioned.” Id.
1. Weight Given to Plaintiff’s Treating Physician’s Opinion:
Plaintiff argues the ALJ erred by giving “little weight” to the opinion of Dr. Ornette
Gaines, who completed a Physical RFC Questionnaire on September 5, 2013. (Doc. 13, p.
404). In the questionnaire, Dr. Gaines indicated he had seen Plaintiff twice in one month.
(Doc. 13. P. 404). Dr. Gaines opined that Plaintiff would constantly have pain or other
symptoms severe enough to interfere with attention and concentration needed to perform
even simple work tasks; was incapable of even “low stress” jobs; that Plaintiff’s mood
disorder and social anxiety interfered and impaired her ability to function/work; that she
could rarely twist, stoop, crouch, squat, climb ladders, and stairs; she was likely to be absent

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from work about two days per month; she could never lift 50 pounds; rarely lift 20 pounds;
occasionally lift 10 pounds; and frequently lift less than 10 pounds. (Doc. 13, pgs. 405-407).
In his decision, the ALJ discussed Dr. Gaines’ opinion, and noted that a treating
physician’s opinion could be discounted because the “check-off form” did not cite to any
supporting clinical test results or findings, and the physicians’ previous treatment notes did
not record any significant limitations due to back pain. The ALJ gave Dr. Gaines’ opinion
little weight, because he reported he based his findings on two examinations of Plaintiff in
one month, and that the record did not indicate that Dr. Gaines recommended any physical
limitations. In fact, his notes indicated he encouraged Plaintiff to exercise and quit smoking.
(Doc. 13, p. 25). In addition, the ALJ had before him the Physical RFC Assessment of nonexamining consultant, Dr. Valerie Malak, who found Plaintiff could perform light work with
no additional limitations. (Doc. 13, p. 62). This assessment was affirmed by non-examining
consultant, Dr. Jerry Thomas, on December 11, 2012. (Doc. 13, p. 95). The ALJ gave the
state agency physicians’ opinions great weight, as they supported the medical evidence
submitted at the initial and hearing levels. (Doc. 13, p. 22).
Based upon the foregoing, the Court finds there is substantial evidence to support the
weight the ALJ gave to Dr. Gaines’ opinion.
2. Weight Given to Dr. Catherine Adams’ Opinion:
Plaintiff argues the ALJ failed to evaluate the opinion of Dr. Catherine Adams in
accordance with applicable law. In his decision, the ALJ discussed Dr. Adams’ evaluation at
length, and concluded as follows:
The undersigned considered the opinion of Dr. Adams. The undersigned finds
her opinion is supported by the objective medical evidence of record and her
examination of the claimant. (See Exhibits 1-4F, 9-10F and 12-19F).

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Therefore, the undersigned has considered her findings in assessing the
claimant’s residual functional capacity.
(Doc. 13 at 24-25).
In her evaluation, Dr. Adams reported that Dr. Acosta prescribed Cymbalta for
Plaintiff, and that she had no side effects. (Doc. 13, p. 366). Plaintiff had taken the Cymbalta
for only two weeks, but reported she did not feel like it was helpful. Plaintiff reported no
assistance was needed with activities of daily living except grocery shopping. (Doc. 13, p.
367). Dr. Adams diagnosed Plaintiff with post-traumatic stress disorder, and assigned her a
GAF score of 50. (Doc. 13, p. 368). Dr. Adams concluded that Plaintiff’s difficulties
interfered with age-appropriate daily functioning, such as interpersonal relationships,
psychological self-care, and leaving her home at certain times of the day; that her interactions
during the interview were socially appropriate; that she communicated in a manner that was
effective and intelligible; that she seemed to have difficulty coping with work-type demands
and seemed to be sort of a “loose cannon” when she perceived threat, which was rather
unpredictable; that she seemed to have little difficulty attending and sustaining concentration
on basic tasks; that she seemed to have little difficulty sustaining persistence in completing
work tasks at times and at other times, was overly persistent on tasks, which depended upon
her mood and motivation for the day; and that she seemed to have difficulty completing tasks
within an acceptable timeframe due to difficulties with persistence. (Doc. 13, p. 369).
Dr. Adams is neither a treating source nor a non-examining source, but is a
consultative examiner, meaning that she has examined the claimant on at least one occasion.
The weight to be given to her opinion is determined by the factors listed under 20 C.F.R.
§404.1527(c). Comstock v. Astrue, 923 F.Supp. 2d 1142, 1156 (N.D. Iowa 2013). The ALJ
is not required to give reasons for the weight given to Dr. Adams’ opinion, because she is not
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a treating source. Id. In his RFC determination, the ALJ included limitations of unskilled
work, stating that “claimant is able to perform work that is 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.” Even though the ALJ did not indicate what weight he was giving Dr. Adam’s
opinion, he clearly considered it. “The ALJ is not required to rely on one doctor’s opinion
entirely or chose [sic] between the opinions.” House v. Colvin, No. 4:13 CV 2301 DDN,
2015 WL 1189812 at *10 (E.D. Mo. Mar. 16, 2015)(citing Martise v. Astrue, 641 F.3d 909,
927 (8th Cir. 2011). In addition, “where an ALJ specifically references the findings of a
medical source, it is ‘highly unlikely’ that the ALJ did not consider and reject aspects of the
sources opinion which the ALJ did not specifically mention.” Loggins v. Colvin, No. 4:14CV
1362NCC, 2015 WL 3533766 at *12 (E.D. Mo. June 4, 2015)(citing Wildman v. Astrue, 596
F.3d 959, 966 (8th Cir. 2010).
Finally, the ALJ had before him the Psychiatric Review Technique Form and Mental
RFC Assessment completed by Cheryl Woodson-Johnson, and the Physical RFC Assessment
forms completed by Dr. Malak and Dr. Thomas. The ALJ gave their opinions great weight,
because he found their findings were supported by the medical evidence submitted at the
initial and hearing levels. (Doc. 13, p. 22).
Based upon the foregoing, and considering the record as a whole, the Court finds
there is substantial evidence to support the ALJ’s RFC determination and the weight he gave
to the opinions of Dr. Gaines and Dr. Adams.
IV.

Hypothetical Question to VE:

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Plaintiff argues that the ALJ failed to inquire whether the VE’s testimony was
consistent with the Dictionary of Occupational Titles (DOT). In his decision, the ALJ
reported that he determined that the VE’s testimony was consistent with the information
contained in the DOT. However, at the hearing, the ALJ did not ask the VE whether his
testimony was consistent with the DOT.
Plaintiff fails to point to any conflict between the VE’s testimony and the DOT, and if
no conflict actually exists, his failure to do so is harmless error. See Renfrow v. Astrue, 496
F.3d 918, 921 (8th Cir. 2007); Howes v. Colvin, No. C14-4067-MWB, 2015 WL 5011973 at
*9 (N.D. Iowa Aug. 24, 2015). Plaintiff has not shown that any conflict exists. Therefore, the
ALJ’s failure to inquire is harmless error.
V.

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 3rd day of August, 2016.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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