Waits v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 5, 2017. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

TERRI WAITS

PLAINTIFF

v.

CIVIL NO. 15-5204

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Terri Waits, 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) under the provisions of Title II 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 DIB on July 15, 2012, alleging an

inability to work since June 30, 2010, 1 due to a bipolar disorder, deterioration of the spine, and
cysts in the neck. (Doc. 12, p. 60, 142). An administrative video hearing was held on
September 16, 2013, at which Plaintiff appeared with counsel and testified. (Doc. 12, pp. 3655).
By written decision dated March 21, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Doc. 12,

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The Court notes that Plaintiff’s application for benefits indicates Plaintiff’s onset date is June 30, 2009. (Doc.
12, p. 142). Field office notes indicate Plaintiff’s onset date is June 30, 2010. (Doc,. 12, p. 180). Plaintiff did
not argue that the ALJ used the incorrect onset date in her appeal brief.

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p. 21). Specifically, the ALJ found Plaintiff had the following severe impairments: early
degenerative disc disease and degenerative joint disease of the cervical spine with modestly
reduced range of motion and pain, mild shoulder pain, obesity, mild right carpal tunnel
syndrome, and fibromyalgia with trigger points but with a residual wide range of activities
intact. 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. 12, p.
23). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform a full
range of light work as defined in 20 C.F.R. 404.1567(b). (Doc. 12, p. 24). With the help of a
vocational expert, the ALJ determined Plaintiff could perform her past relevant work as an
assistant store manager, a store manager, and a sales associate. (Doc. 12, p. 30).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on July 8, 2015. (Doc. 12, pp. 5-9). 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. 10, 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

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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.
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 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. § 404.1520. Only

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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), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 404.1520.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in not finding that

Plaintiff’s degenerative disc disease meets or equals Listing 1.04A; 2) the ALJ’s RFC failed to
include the required function-by-function assessment; and 3) the ALJ erred in assessing
Plaintiff’s credibility.
A.

Listing 1.04A:

Plaintiff argues that the ALJ erred by failing to determine that Plaintiff’s impairment
medically equals Listing 1.04(A) for disorders of the spine, as listed in the Listing of
Impairments pursuant to 20 CFR Part 404, Subpart P, Appendix 1. 2

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Listing 1.04 states as follows:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined
in 1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.

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The burden of proof is on the Plaintiff to establish that her impairment meets or equals
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria
for the one most similar listed impairment”). In this case, the ALJ explicitly found that no
treating or examining physician mentioned findings equivalent in severity to the criteria of a
listed impairment, and that the medical evidence does not show medical findings that are the
same or equivalent to a listed impairment. The Court notes that medical evidence dated
November 7, 2012, revealed that Plaintiff’s muscle strength was normal with no atrophy;
evidence dated November 13, 2011, indicated that Plaintiff had no weakness and normal
musculature; and in February of 2013, the evidence indicated Plaintiff exhibited 5 out of 5
strength in all four extremities. (Doc. 12, pp. 317, 398, 403). As noted above, motor loss is
one of the criteria required to meet the Listing.
The Court finds, based upon the record as a whole, as well as 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. After reviewing the entire
evidence of record, the Court finds there is sufficient evidence to support the ALJ’s
determination that Plaintiff’s impairments do not medically equal Listing 1.04A.

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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
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, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the
record revealed that during the relevant time period Plaintiff indicated that she was attending
Blue Cliff College studying to become a certified medical assistant noting her teachers allowed
her to get up during class; that she was able to perform household chores adequately but noted
experiencing some pain; that she could perform basic self-care tasks independently; that she
could drive short distances; that she could shop independently as long as she did not have to
lift heavy items; and that she could handle her finances but had difficulty budgeting.
With respect to Plaintiff’s alleged physical impairments, the record revealed that
Plaintiff was treated conservatively and appeared to experience some relief with the use of
medication. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998); See Robinson v. Sullivan,
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956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment contradicted claims of
disabling pain). For example, Plaintiff reported in November of 2012 that she was no longer
experiencing migraines and that her mild headaches responded well to over-the-counter
therapy. (Doc. 12, p. 316). At that time, Plaintiff was also noted to have normal muscle
strength without atrophy. It is also noteworthy that on November 13, 2012, a review of systems
notation indicated that Plaintiff, who was seeking treatment for tonsillitis, denied experiencing
a headache, paresthesia, joint pain or swelling, or weakness.

(Doc. 12, p. 398).

An

examination performed on the same date revealed that Plaintiff had normal musculature and
no skeletal tenderness or joint deformity. While Plaintiff may indeed have an injury in her
neck and back and experience some degree of pain, the medical evidence indicates that her
condition is not of a disabling nature. See Lawrence v. Chater, 107 F.3d 674, 676 (8th Cir.
1997) (upholding ALJ's determination that claimant was not disabled even though she had in
fact sustained a back injury and suffered some degree of pain); Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993) (holding that, although plaintiff did have degenerative disease of the
lumbar spine, the evidence did not support a finding of disabled).
With regard to Plaintiff’s alleged mental impairments, the record failed to demonstrate
that Plaintiff sought on-going and consistent treatment from a mental health professional
during the relevant time period. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001)
(holding that lack of evidence of ongoing counseling or psychiatric treatment for depression
weighs against plaintiff’s claim of disability).
Therefore, although it is clear that Plaintiff suffered with some degree of limitation, she
did not establish that she was unable to engage in any gainful activity during the relevant time
period.

Accordingly, the Court concludes that substantial evidence supports the ALJ’s

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conclusion that Plaintiff’s subjective complaints were not totally credible for the time period
in question.
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 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 h[er] RFC.” Id.
In finding Plaintiff able to perform light work, the ALJ considered Plaintiff’s subjective
complaints, the medical records, and the evaluations of the non-examining medical examiners.
Plaintiff's capacity to perform this level of work is supported by the fact that Plaintiff's
examining physicians placed no restrictions on her activities that would preclude performing
the RFC determined during the relevant time period. See Hutton v. Apfel, 175 F.3d 651, 655
(8th Cir. 1999) (lack of physician-imposed restrictions militates against a finding of total
disability). The ALJ also took Plaintiff’s obesity into account when determining that Plaintiff
could perform light work with limitations. Heino v. Astrue, 578 F.3d 873, 881-882 (8th Cir.

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2009) (when an ALJ references the claimant's obesity during the claim evaluation process,
such review may be sufficient to avoid reversal). After reviewing the entire transcript, the
Court finds substantial evidence supporting the ALJ’s RFC determination for the time period
in question.
D.

Past Relevant Work:

Plaintiff has the initial burden of proving that she suffers from a medically determinable
impairment which precludes the performance of past work. Kirby v. Sullivan, 923 F.2d 1323,
1326 (8th Cir. 1991). Only after the claimant establishes that a disability precludes the
performance of past relevant work will the burden shift to the Commissioner to prove that the
claimant can perform other work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993).
According to the Commissioner's interpretation of past relevant work, a claimant will
not be found to be disabled if she retains the RFC to perform:

1. The actual functional demands and job duties of a
particular past relevant job; or
2. The functional demands and job duties of the
occupation as generally required by employers
throughout the national economy.

20 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir.
1990)(expressly approving the two part test from S.S.R. 82-61).
The Court notes in this case the ALJ relied upon the testimony of a vocational expert,
who after listening to the ALJ’s proposed hypothetical question which included the limitations
addressed in the RFC determination discussed above, testified that the hypothetical individual
would be able to perform Plaintiff’s past relevant work. See Gilbert v. Apfel, 175 F.3d 602,
604 (8th Cir. 1999) ("The testimony of a vocational expert is relevant at steps four and five of
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the Commissioner's sequential analysis, when the question becomes whether a claimant with
a severe impairment has the residual functional capacity to do past relevant work or other
work") (citations omitted). Accordingly, the Court finds substantial evidence to support the
ALJ’s finding that Plaintiff could perform her past relevant work as an assistant store manager,
store manager, and sales associate.
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 5th day of January, 2017.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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