Butcher v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 12, 2017. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MISTY D. BUTCHER

PLAINTIFF

V.

NO. 15-5293

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

DEFENDANT

MEMORANDUM OPINION

Plaintiff, Misty D. Butcher, 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 benefits (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 September 27,

2012, alleging an inability to work since September 1, 2012, due to multiple sclerosis,
diabetes, and high blood pressure. (Doc. 14, pp. 198-211, 235, 239). An administrative
hearing was held on June 13, 2014, at which Plaintiff appeared with counsel and testified.
(Doc. 14, pp. 23-51).

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By written decision dated July 8, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe –
diabetes mellitus; multiple sclerosis; obesity; and dysthymic disorder. (Doc. 14, p. 57).
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. 14, p. 58).
The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
within the following parameters: the claimant can occasionally lift up to 10
pounds; frequently lift less than 10 pounds; sit (with normal breaks) for a total
of about 6 hours in an 8-hour workday; and and/or walk (with normal breaks)
for a total of about 2 hours in an 8-hour workday; never climb ladders, ropes
or scaffolds; occasionally climb stairs or ramps; occasionally balance, stoop,
kneel, crouch or crawl; frequently (but not constantly) handle and finger
bilaterally; and must avoid concentrated exposure to extreme cold/heat and to
hazards (such as dangerous moving machinery and unprotected heights).
Mentally, the claimant is able to understand, remember and carry out short,
simple instructions.
(Doc. 14, p. 61). With the help of the vocational expert (VE), the ALJ determined that during
the relevant time period, Plaintiff could perform such jobs as final assembler; jewelry
preparer; and egg processor. (Doc. 14, p. 70).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on October 9, 2015. (Doc. 14, pp. 5-10). Subsequently, Plaintiff
filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the
parties. (Doc. 8). Both parties have filed appeal briefs, and the case is now ready for decision.
(Docs. 11-13).
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.

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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
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 him 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 issue in this matter: Whether the ALJ erred in his RFC

determination. (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)
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

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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 her decision, the ALJ addressed Plaintiff’s daily activities, noting that Plaintiff
cleaned, shopped, cooked, took public transportation, payed bills, maintained a residence,
cared for grooming and hygiene, used telephones and directories, and used a post office.
(Doc. 14, p. 59). The ALJ also noted that Plaintiff sought minimal mental health treatment,
and was reported as being non-compliant. (Doc. 14, pp. 60, 65). It is also noteworthy that
Plaintiff smoked cigarettes, and although she was frequently counseled to quit smoking, she
continued.
The Court finds there is substantial evidence to support the ALJ’s credibility analysis.
B. RFC Determination:
Plaintiff argues that the ALJ failed to properly consider and evaluate all of the
evidence, and ignored or minimized evidence favorable to Plaintiff, and that had she not done
so, the ALJ would have found Plaintiff could not perform any competitive jobs.
As indicated earlier, the ALJ found Plaintiff retained the RFC to perform sedentary
work with certain limitations. 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, 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

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“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-MWB, 2015 WL 1510159 at *11 (N.D. Iowa Mar. 31, 2015)(quoting
from Willms v. Colvin, Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013)).
With respect to Plaintiff’s physical limitations, in one of the earlier records, dated
May 9, 2012, it was reported that Plaintiff had not been treating her chronic conditions for
one year. (Doc. 14, p. 327). It was also reported at that time that Plaintiff moved her
extremities well, her speech was normal, her affect was normal, and her memory and gait
were normal. (Doc. 14, p. 332). Between June of 2012 and September of 2012, Plaintiff
missed several doctors’ appointments at the Cherokee Nation Health Services. (Doc. 14, pp.
314-317).
On December 11, 2012, Plaintiff visited the Jay Community Clinic, and reported she
had run out of all of her medications one month prior, secondary to a move. (Doc. 14, p.
421). The report noted Plaintiff’s history of HTN (hypertension), diabetes mellitus II, and
multiple sclerosis (MS). (Doc. 14, p. 427).
On February 2, 2013, Plaintiff underwent a physical examination by Dr. David
Weigman. (Doc. 14, p. 399). Dr. Wiegman reported that Plaintiff indicated she was
diagnosed with MS about five years previously, and that it was causing her some problems

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with concentration and had some left leg twitching, mainly at night. (Doc. 14, p. 399). She
also reported uncontrolled diabetes. (Doc. 14, p. 399). Dr. Wiegman reported Plaintiff’s arm
and leg strength seemed to be normal at 5/5; her grip strength was normal at 5/5; her arm,
leg, back and neck revealed normal ranges of motion; and no joint swelling, erythema,
effusion, or deformities were noted. (Doc. 14, p. 400). She had a normal symmetric steady
gait, had difficulty walking on her toes and heels separately, and had difficulty walking heelto-toe due to losing her balance. (Doc. 14, p. 400). Dr. Weigman diagnosed Plaintiff with
MS, noting that her fatigue and stiffness was most likely due to her inactivity; uncontrolled
diabetes; and hypertension. (Doc. 14, p. 401).
In a Disability Determination Explanation, dated March 1, 2013, non-examining
consultants, Dr. Roberta Herman and Burnard Pearce, Ph.D., concluded that Plaintiff did not
have a severe physical or mental impairment, respectively. (Doc. 14, p. 82-82). On March 11,
2013, when Plaintiff presented to Jay Community Clinic for a three month evaluation and
management of diabetes mellitus, dyslipidemia, GERD, HTN, and obesity, her noncompliance and smoking cessation were discussed. A CT scan of the chest was
recommended, because a nodule on the right mid lung was found. (Doc. 14, pp. 416-418).
The CT scan was performed on April 15, 2013, and a 6 week follow-up or PET CT scan was
recommended. (Doc. 14, p. 448).
Plaintiff presented to the Marcus Clinic as a new patient on September 13, 2013,
seeking medication refills. (Doc 14, p. 437). She reported that she ran out of medications two
weeks prior. (Doc. 14, p. 437). Plaintiff was diagnosed with diabetes mellitus, Type 2,
uncontrolled; dyslipidemia; hypertension; and depression. (Doc. 14, p. 440). Plaintiff
thereafter had x-rays of her chest performed on November 6, 2013, which revealed:

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1. With H/O previous pulmonary nodules, there is a 1.6 cm noncalcified nodule right
mid lung field. If outside examinations are made available comparison addendum
dictation will be made. Otherwise follow up within 3-4 months is considered to insure
stability.
No acute pleura-parenchymal process seen. No failure identified.
(Doc. 14, p. 452).
On November 6, 2013, Dr. Stephen J. Veit conducted a Wellness and Preventative
exam. (Doc. 14, p. 469). He reported that Plaintiff was a poor historian, but she denied pain
or weakness, tremors, loss of balance or coordination, and she had a balanced gait. (Doc. 14,
pp. 469-470). Plaintiff did have some decreased sensation over the first three toes during
filament testing, and Dr. Veit reported he gave Plaintiff a strong, clear, personalized message
urging smoking cessation. (Doc. 14, p. 470).
Plaintiff first began seeing Dr. Elizabeth M. Hartman, Board Certified Neurologist,
Multiple Sclerosis Specialist, on December 5, 2013. (Doc. 14, p. 451). On December 23,
2013, a MRI of Plaintiff’s cervical spine was performed, which revealed:
1. Multiple T2 and FLAIR hyperintensities within cord white matter however no
expansile lesion or evidence of enhancing white matter tract lesion identified.
This is consistent with severe previous white matter tract plaque and again is
greatest at cordlevel of C2 through C4 and then hyperintense signal at level of
C6.
This would most likely suggest (given the same time frame evaluation of brain
MRI exam); as lesions consistent with extensive MS type disease consistent
with previous prominent demyelination. Of note, no significant enhancement
post contrast administration of these lesions is detected to indicate an active
white matter tract disease.
(Doc. 14, p. 451).
Plaintiff thereafter went to Dr. Veit for management of her diabetes. (Doc. 14, pp.
455-456, 460, 484).

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On March 31, 2014, Plaintiff saw Dr. Hartman for a recheck of her MS. (Doc. 14, p.
475). Plaintiff reported to Dr. Hartman that there was some improvement since taking
medication for her depression, and that the auditory hallucinations had resolved. (Doc. 14, p.
475). Dr. Hartman reported that Plaintiff’s gait was limited and slowed. (Doc. 14, p. 475).
She reported 5/5 strength in all muscle groups of bilateral upper and lower extremities; tone
was normal throughout; there was no atrophy noted in the upper and lower extremities; and
her reflexes were 2+/4 and symmetric in bilateral upper and lower extremities except absent
at ankles.

Plaintiff reported “decreased temp” in left upper extremity and right lower

extremity, pinprick was intact throughout without gradient vibration 5-10 seconds at bilateral
toes and moderately reduced in “DE’s Coordination;” there were no tremor or abnormal
movements; finger to nose was normal; and gait and station was slow but steady. (Doc. 14, p.
477). Dr. Hartman concluded that Plaintiff had a significant chronic burden of MS as noted
on the Brain MRI, which placed her at “high risk for future disability and secondary
progressive disease, though fortunately had not had any clear new clinical relapses.” (Doc.
14, p. 478). Dr. Hartman reported that Plaintiff was stable and tolerating Tecfidera well
since January of 2014. (Doc. 14, p. 478).
Less than one month later, on April 23, 2014, Dr. Hartman completed a Physical RFC
Assessment. (Doc. 14, p. 442). In said assessment, Dr. Hartman found Plaintiff to have many
severe limitations, and concluded that Plaintiff had significant, permanent disability related
to a chronic neurodegenerative disease, with both subjective and objective evidence of
impairments. (Doc. 14, p. 445).
In his decision, the ALJ noted Plaintiff’s non-compliance, referencing Plaintiff’s
failure to take her medications and her frequent “no-shows” for appointments. (Doc. 14, p.

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64). The ALJ also mentioned the fact that Plaintiff received little or no actual medical
treatment between the onset date of September 1, 2011 and May 9, 2012. (Doc. 14, p. 64).
The ALJ addressed the physical consultative examination by Dr. Wiegman, and the records
of Dr. Veit. (Doc. 14, p. 65). The ALJ gave considerable weight to Dr. Wiegman’s findings.
(Doc. 14, p. 66). The ALJ carefully addressed Dr. Hartman’s opinions, and gave them “some
weight in support of a finding that the claimant is limited to the performance of work at the
sedentary exertional level.” (Doc. 14, p. 7). The ALJ found that many of Dr. Hartman’s other
conclusions were out of proportion with the overall record, including the findings of Dr.
Wiegman and Dr. Hartman’s own treatment notes, which the ALJ believed contained very
few objective findings on examination. (Doc. 14, p. 67). The ALJ finally concluded that
Plaintiff’s current allegations were very rarely reported in treatment records, and that many
did not appear to have been listed among her complaints prior to the March 2014
appointment with Dr. Hartman. (Doc. 14, p. 67). The ALJ also noted that treating and
examining providers had noted relatively few objective findings that would support
limitations to the extent now described by the claimant. (Doc. 14, p. 67).
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

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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.
The Court recognizes the fact that Dr. Hartman is a neurologist and MS Specialist.
However, at the March 31, 2014 visit, Dr. Hartman’s findings were not consistent with the
severe limitations she expressed in the April 23, 2014 Physical RFC assessment. For
example, in the March 31, 2014 report, Dr. Hartman reported that over the prior month, at the
end of day after sitting down, Plaintiff noted pain in her feet which may radiate up to calf
level bilaterally, and that Plaintiff had mild improvement with Tylenol, but it usually
resolved spontaneously, or occasionally might make it difficult to fall asleep. (Doc. 14, p.
475). It was noted that stretching at the ankles may improve discomfort. Dr. Hartman
reported no other new neurological symptoms. Upon physical examination, Dr. Hartman
reported Plaintiff’s mood was appropriate, her pupils were equal, round, and reactive to
direct and indirect light as well as near response; her visual acuity was intact bilaterally, III,
IV, VI; her shoulder shrug was equal and strong bilaterally; her motor strength was 5/5 in all
muscle groups of bilateral upper and lower extremities; she had normal tone throughout; no
atrophy was noted in the upper and lower extremities; reflexes were 2+/4 and symmetric in
bilateral upper and lower extremities except absent at ankles; there were no tremors or
abnormal movements; and her gait and station were slow but steady. (Doc. 14, p. 477). Dr.
Hartman found Plaintiff to be stable and tolerating Tecfidera well since January of 2014.
Plaintiff was to continue the Tecfidera, check her CBC, recheck her Vitamin D and ICV Ab
status, continue glycemic, lipid control and smoking cessation efforts, and Dr. Hartman
believed that Plaintiff’s lower extremity pain symptoms might be related to mild diabetic

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neuropathy, and offered a trial of gabapentin PRN. Plaintiff preferred to defer that, and Dr.
Hartman also suggested that Plaintiff consider the use of wrist splints if there was increased
nighttime UE paresthesias. (Doc. 14, p. 478).
Clearly, Dr. Hartman’s March 31, 2014 report is inconsistent with the severe
limitations Dr. Hartman indicated in the Physical RFC assessment she completed less than
one month later. Accordingly, the Court believes the ALJ was justified in discounting Dr.
Hartman’s Physical RFC assessment, and sufficiently explained his reasons for doing so. In
addition, Dr. Hartman’s April 2014 opinion was inconsistent with the findings of Dr.
Wiegman.
Regarding Plaintiff’s mental limitations, Plaintiff argues that the ALJ failed to
properly include functional limitations relating to Plaintiff’s mild and moderate mental
limitations. In his decision, the ALJ found that Plaintiff suffered from the severe impairment
of dysthymic disorder. (Doc. 14, p. 57). The ALJ found that Plaintiff’s apparent ability to
manage household chores and finances supported a finding that Plaintiff would be able to
understand short, simple instructions. (Doc. 14, p. 63). The ALJ pointed to Plaintiff’s
testimony at the hearing where she acknowledged that her mental health treatment had been
limited to medication prescribed by her primary care physician, Dr. Veit. (Doc. 14, p. 67).
Plaintiff had not been seen for therapy or counseling, and had never been referred to a
psychologist or psychiatrist. The ALJ found that this was not consistent with mental health
symptoms of the severity now alleged, such as regular suicidal thoughts and hallucinations.
(Doc. 14, p. 67). The ALJ also discussed the fact that at an appointment in December of
2012, normal mood, affect, memory and judgment were reported. (Doc. 14, p. 68). Although
Dr. Hartman’s summary from January 10, 2014 did refer to “auditory hallucinations of

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unclear etiology,” which Dr. Hartman believed were “possibly related to depression/stressors
[and] unlikely related to MS or other primary neurological process” (Doc. 14, p. 68), on
March 31, 2014, Plaintiff reported to Dr. Hartman that her depression had improved and her
reported auditory hallucinations had resolved. (Doc. 14, p. 68).
The ALJ also addressed the psychological consultative examination Plaintiff
underwent with Melinda Shaver, PsyD., on January 30, 2013. Ms. Shaver noted that
Plaintiff’s mood appeared dysthymic and her affect was flattened, but that Plaintiff was
cooperative and friendly, with good eye contact, appropriate behavior, and her speech was
relevant and coherent. (Doc. 14, p. 68). Ms. Shaver gave Plaintiff a GAF score of 65, which
is generally indicative of only mild symptoms or some difficulty in social/occupation
functioning, but generally functioning pretty well. The ALJ gave this opinion considerable
weight. (Doc. 14, p. 68).
Based upon the foregoing, the Court finds that there is substantial evidence to support
the ALJ’s RFC determination, and the weight she gave the opinions of the various
physicians.
C. Hypothetical Question:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical questions the ALJ posed to the VE 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 VE’s opinion constitutes substantial evidence supporting the ALJ's conclusion that
Plaintiff would be able to perform jobs such as final assembler, jewelry preparer, and egg

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processor. 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 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 12th day of January, 2017.

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

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