Cutter v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on July 3, 2017. (rg)

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

LISA M. CUTTER

PLAINTIFF

v.

CIVIL NO. 16-5121

NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Lisa M. Cutter, 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 claim for a period of disability, 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 application for DIB on May 2, 2013, and her application

for SSI on May 7, 2013. (ECF No. 9, p. 41). In her applications, Plaintiff alleges disability due
to residuals of cancer treatment in remission, post-traumatic stress disorder (“PTSD”), chronic
obstructive pulmonary disease (“COPD”), and emphysema. (ECF No. 9, p. 253). Plaintiff

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
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alleges an onset date of September 1, 2010. (ECF No. 9, pp. 41, 248). These applications were
denied initially and again upon reconsideration. (ECF No. 9, pp. 81-144).
Thereafter, Plaintiff requested an administrative hearing on her denied applications,
and this hearing request was granted. (ECF No. 9, pp. 163-68). Plaintiff’s administrative
hearing was held on August 22, 2014, in Fort Smith, Arkansas (ECF No. 9, pp. 56-80). Plaintiff
appeared in person and was represented by Laura McKinnon. Id. Plaintiff and Vocational
Expert (“VE”) James Sprague testified at this hearing. Id. At the time of this hearing, Plaintiff
was fifty-one (51) years old, which is defined as a “person closely approaching advanced age”
under 20 C.F.R. §§ 404.1563(d), 416.963(d). As for her level of education, Plaintiff has a GED.
(ECF No. 9, p. 61).
After this hearing, on February 6, 2015, the ALJ entered an unfavorable decision
denying Plaintiff’s applications for DIB and SSI. (ECF No. 9, pp. 38-51). In this decision, the
ALJ found Plaintiff last met the insured status requirements of the Act through September 30,
2011. (ECF No. 9, p. 43, Finding 1). The ALJ also found Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since September 1, 2010, Plaintiff’s alleged onset date.
(ECF No. 9, p. 43, Finding 2). The ALJ determined Plaintiff had the following severe
impairments: essential hypertension, COPD, asthma, fibromyalgia, and depression with
anxiety. (ECF No. 9, p. 43, Finding 3). Despite being severe, the ALJ determined these
impairments did not meet or medically equal the requirements of any of the Listings of
Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 9, pp. 44-45,
Finding 4).
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
9, pp. 45-49, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found

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her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform “light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except [she] is able to perform jobs with simple instructions.” Id. The ALJ then
determined Plaintiff had no Past Relevant Work (“PRW”). (ECF No. 9, p. 50, Finding 6).
Based on Plaintiff’s age, education, work experience, and RFC, the ALJ determined there were
jobs existing in significant numbers in the national economy Plaintiff could perform, such as a
cashier II, a price marker, and a motel housekeeper (ECF No. 9, pp. 50-51, Finding 10). The
ALJ therefore determined Plaintiff had not been under a disability, as defined by the Act, from
September 1, 2010, Plaintiff’s alleged onset date, through February 6, 2015, the date of the
ALJ’s decision. (ECF No. 9, p. 51, Finding 11).
Thereafter, on March 4, 2015, Plaintiff requested a review by the Appeals Council
(ECF. No. 9, pp. 36-37). The Appeals Council denied this request on March 31, 2016. (ECF
No. 9, pp. 5-9). On June 1, 2016, Plaintiff filed the present appeal with this Court. (ECF No.
1). The parties consented to the jurisdiction of this Court on June 14, 2016. (ECF No. 7). This
case is now ready for decision.
II.

Applicable Law:
This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). As long as there is
substantial evidence in the record that supports the Commissioner’s decision, the court may

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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.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s decision. Id.
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), 1382c(a)(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 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 his age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). Only if she reaches the final stage does the fact finder consider Plaintiff’s age,
education, and work experience in light of his residual functional capacity. See McCoy v.

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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(a)(4)(v), 416.920(a)(4)(v).
III.

Discussion:
Plaintiff raises three issues on appeal: 1) the ALJ failed to fully and fairly develop the

record; 2) the ALJ erred in assessing the credibility of Plaintiff’s subjective complaints; and 3)
the ALJ erred in his RFC determination. (ECF No. 11).
A.

Subjective Complaints and 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 946, 966 (8th Cir. 2003).
The record contains substantial evidence supporting the ALJ’s conclusion that
Plaintiff’s subjective complaints were not entirely credible. First, Plaintiff’s regular treatment
began long after her alleged onset date. For example, Plaintiff met with Dr. Kendrick on three
occasions in 2010 near her alleged onset date. (ECF No. 9, pp. 332-35, 339-63). She did not
follow up with a healthcare provider until she met with Dr. Morgan on February 27, 2012,
regarding depression symptoms, and then did not seek further treatment until re-establishing

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care with Dr. Morgan on January 24, 2013, for bronchitis, fatigue, adhesions, and medication
refills. (ECF No. 9, pp. 374-81). See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004)
(holding that lack of objective medical evidence is a factor an ALJ may consider); see also
Moad v. Massanari, 260 F.3d 887, 892 (8th Cir. 2001) (regarding credibility, the Court noted
Plaintiff had not sought treatment from any physician in the seven months prior to the
administrative hearing). Next, Plaintiff continued to work throughout the relevant period. (ECF
No. 9, pp. 49, 550). See Curran-Kicksey v. Barnhart, 315 F.3d 964, 969 (8th Cir. 2003)
(holding that even part-time work is inconsistent with claims of disability); see also Dunahoo
v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (“Seeking work and working at a job while
applying for benefits, are activities inconsistent with complaints of disabling pain”). Finally,
the ALJ considered Plaintiff’s activities of daily living and determined that, while she had
some limitation, she was able to perform personal care, drive unfamiliar routes, shop
independently, handle personal finances, interact with her sons and their family, and visit with
friends and neighbors. (ECF No. 9, pp. 44, 49).
The ALJ gave some credit to Plaintiff’s allegations of pain and the effectiveness of her
medications by limiting her RFC to work at the light exertion level. Therefore, although it is
clear that Plaintiff suffers with some degree of limitation, she has not established that she is
unable to engage in any gainful activity. Accordingly, the Court concludes that the ALJ
provided good reasons for discounting Plaintiff’s subjective complaints and that substantial
evidence supports the ALJ’s conclusion that Plaintiff’s subjective complaints were not entirely
credible.

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B.

RFC Determination and Medical Opinions:

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §§
404.1545, 416.945. 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 his 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),
416.945(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.
Plaintiff specifically contends the ALJ’s RFC determination should have included
manipulative restrictions. (ECF No. 11, pp. 6-10). First, Plaintiff directs this court to the
opinion of Dr. Brownfield. (ECF No. 11, pp. 8-9). The ALJ, however, only accepted Dr.
Brownfield’s opinion to the extent it was consistent with other evidence in the record that
Plaintiff “was limited in prolonged or heavy exertion.” (ECF No. 9, p. 48). Even if the ALJ
gave weight to Dr. Brownfield’s examination of Plaintiff’s extremities, Dr. Brownfield’s
opinion appears to be that Plaintiff was without any limitation in her shoulders, elbows, wrists,
or hands. (ECF No. 9, p. 396).

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Second, Plaintiff argues her treating physician, Dr. Morgan, required her to wear a wrist
brace. (ECF No. 9, p. 8). Plaintiff cites to a prescription paper signed by Dr. Morgan on October
28, 2014 which states, “[Plaintiff] was given a brace for her right wrist on [July 16, 2013]. This
was treatment for arthritis/tendonitis.” (ECF No. 9, p. 489). Dr. Morgan’s treatment notes
indicated that the brace was given at Plaintiff’s request: “[Chief Complaints:] Problems with
her hand; Right arm pain goes up to elbow; needs pft for SS; Onset three weeks ago. . . feels
like it will break and needs a brace; Room 3 rs.” (ECF No. 9, p. 467). Dr. Morgan’s notes on
that date also indicate three x-rays of Plaintiff’s wrist were taken on the same day, but the
records do not include the x-rays, nor do they include any discussion of these x-rays. (ECF No.
9, pp. 467-68). None of the evidence in the record states Plaintiff must use a wrist brace and
no mention is made of Plaintiff wearing the brace, needing it adjusted, needing a new brace,
or whether or not the brace was helpful, until Dr. Morgan’s October 28, 2014, note, which
essentially provides only that Plaintiff was given a brace, and Dr. Benafield’s October 28,
2014, note that Plaintiff told him she wore the brace for her thumb pain. (ECF No. 9, pp. 489,
550).
Third, Plaintiff directs this Court to Plaintiff’s treatment in October of 2014, with Drs.
Morgan and Benafield. (ECF No. 11, p. 8). Dr. Morgan’s treatment notes from October 8,
2014, indicate, however, “[Plaintiff] is getting adequate relief of her chronic pain.” (ECF No.
9, p. 537). Dr. Morgan noted tenderness to palpation at the base of Plaintiff’s thumb, at the
carpal-metacarpal area, and laterally in Plaintiff’s elbow. (ECF No. 9, p. 539). Dr. Morgan
ordered x-rays of Plaintiff’s right thumb and elbow which were both normal. (ECF No. 9, pp.
545-49). Dr. Morgan referred Plaintiff to an orthopaedic surgeon specializing in hands, wrists,
elbows, and shoulders, Dr. Benafield. (ECF No. 9, pp. 549-51). Dr. Benafield diagnosed

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Plaintiff with bilateral carpal tunnel syndrome and possible ulnar neuropathy at the elbow,
bilateral thumb CMC arthritis, and bilateral mild lateral epicondylitis. (ECF No. 9, pp. 54951). Dr. Benafield stated, in his notes, “I think we should start by working her up with a nerve
conduction study. Based on those results we may have to discuss surgical options. If she has a
surgical problem, then we might consider injections at the time of surgery into the thumb or
the elbows. She is comfortable with this plan. We are going to make the referral. We will see
her back in a month.” (ECF No. 9, p. 551). The record does not contain a follow-up with Dr.
Benafield, nor does the record contain the results of the nerve conduction studies he ordered.
Neither Dr. Morgan nor Dr. Benafield, placed any limitation on Plaintiff’s activities.
Finally, Plaintiff directs this Court to Plaintiff’s treatment with Dr. Sampson. (ECF No.
11, pp. 8-9). The Court notes that the record contains no evidence of Plaintiff’s treatment
between October 28, 2014, and Plaintiff’s treatment with Dr. Sampson on February 17, 2015,
despite Dr. Sampson’s treatment notes that she was initially seen by Dr. Sampson two weeks
prior. (ECF No. 9, pp. 558-69). Dr. Sampson ordered an x-ray hand arthritis series which
revealed “mild osteoarthritis of the left triscaphe joint,” normal bilateral MCP joints, no
erosions, normal bone mineralization, and “minimal osteoarthritis of the right interphalangeal
joints with tiny marginal spurs, most notable involving the right index finger PIP and DIP
joints.” (ECF No. 9, p. 560). Dr. Sampson noted Plaintiff’s range of motion in her shoulders,
elbows, and wrists was “good.” (ECF No. 9, pp. 567-68). Dr. Sampson considered the
possibility Plaintiff could have rheumatoid arthritis and began Plaintiff on a trial of Prednisone
to see if it improved her symptoms. (ECF No. 9, p. 568). Dr. Sampson, however,
“Recommended getting some regular low-impact exercises,” and did not place any limitations
on Plaintiff’s activity. (ECF No. 9, p. 568). Plaintiff followed up with Dr. Sampson on April

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29, 2015, who again described Plaintiff’s ROM in her shoulders, elbows, and wrists as “good,”
and described Plaintiff’s tenderness to palpation in her hands as “mild.” (ECF No. 9, pp. 57780). Dr. Sampson took Plaintiff off Prednisone, started her on Methotrexate, and stated,
“[Plaintiff] did notice a remarkable improvement in her hand pain and hip pain with
prednisone.” (ECF No. 9, p. 580).
The foregoing represents substantial evidence supporting the ALJ’s RFC determination
that Plaintiff was limited to the full range of unskilled light work. Plaintiff’s treatment was
routinely conservative with multiple physicians recommending that she treat her pain with
medication management. See. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (holding
that treating physician’s conservative treatment was inconsistent with Plaintiff’s allegations of
disabling pain). There were also long periods of time where Plaintiff failed to seek treatment.
As discussed previously, in regard to the credibility of Plaintiff’s subjective complaints, a
failure to seek treatment for a specified period of time is inconsistent with complaints of
disabling pain for that time. See Forte at 895. (holding that lack of objective medical evidence
is a factor an ALJ may consider); see also Moad at 892. (8th Cir. 2001) (regarding credibility,
the Court noted Plaintiff had not sought treatment from any physician in the seven months
prior to the administrative hearing). In that same regard, Plaintiff continued to work during the
relevant period, in a job which specifically required her to handle and manipulate bags of ice.
(ECF No. 9, p. 550); Further, I note that a mere diagnosis is not sufficient to prove disability,
absent some evidence to establish a functional loss resulting from that diagnosis. See Trenary
v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990).
It is clear Plaintiff suffers with some degree of limiting pain. This Court notes, however,
that the inability to work without some pain or discomfort is not a sufficient reason to find a

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Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain,
but whether the pain a Plaintiff experiences precludes the performance of substantial gainful
activity. See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
The Court notes that in determining Plaintiff’s RFC, the ALJ considered the treatment
notes and medical opinions of many treating physicians, consultative examiners, and
specialists, as well as those of the non-examining state agency consultants, and set forth the
reasons for the weight given to the opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th
Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians”) (citations omitted); Prosch v. Apfel, 201 F.3d 1010 at 1012 (8th
Cir. 2000) (the ALJ may reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they are inconsistent with the record as a whole). Based on the
record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination.
C.

Development of the Record:

Plaintiff argues the ALJ failed to develop the record, specifically that the ALJ should
have sought another RFC assessment or general physical examination of Plaintiff. (ECF No.
13, pp. 13-14).
The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure his
decision is an informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004). However, the ALJ is not required to function as the claimant’s
substitute counsel, but only to develop a reasonably complete record. Whitman v. Colvin, 762
F.3d 701, 707 (8th Cir. 2014) (quoting Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
While “[a]n ALJ should recontact a treating or consulting physician if a critical issue is

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undeveloped,” “the ALJ is required to order medical examinations and tests only if the medical
records presented to him do not give sufficient medical evidence to determine whether the
claimant is disabled.” Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quotation,
alteration, and citation omitted).
Plaintiff contends the ALJ failed to fully and fairly develop the record because he did
not seek out a Physical RFC Assessment from Plaintiff’s treating physician, Dr. Morgan. (ECF
No. 11). At the outset, however, I note that Plaintiff’s counsel neither sought nor requested the
ALJ seek a Physical RFC Assessment from Dr. Morgan. Nor was the ALJ required to request
Dr. Morgan to provide a Physical RFC Assessment. Page v. Astrue, 484 F.3d 1040, 1043 (8th
Cir. 2007); Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004). Plaintiff then argues that
because Dr. Morgan never provided a Physical RFC Assessment, the ALJ is compelled to give
weight to Dr. Brownfield’s opinion Plaintiff had limitations with her right hand. (ECF No. 11,
p. 3). Plaintiff’s argument is unavailing, however, because the ALJ specifically discounted Dr.
Brownfield’s opinion because it was at least partially inconsistent with Dr. Morgan’s records.
(ECF No. 9, p. 48). Although Dr. Benafield, an orthopaedic surgeon specializing in the hands,
wrists, elbows, and shoulders, ordered a nerve conduction study on October 28, 2014, Plaintiff
has not placed the results of that study into the record for consideration. (ECF No. 9, pp. 55051). The evidence is clear that while Plaintiff was experiencing symptoms at least until October
28, 2014, Plaintiff’s treating physician, Dr. Morgan, and her orthopaedist, Dr. Benafield, were
still exploring the nature and extent of Plaintiff’s symptoms at that time, and had not placed
her on any additional limitations. Id. As discussed above, Plaintiff was also working part time
bagging ice at the Dollar Store at the same time she was complaining of symptoms to Dr.
Morgan on October 28, 2014. Id.

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The ALJ had before him the evaluations and treatment records of numerous healthcare
providers which, as more specifically set forth above, provided sufficient evidence for the ALJ
to make an informed decision regarding Plaintiff’s alleged physical and mental impairments.
The Court also notes that other evidence in the record, including Plaintiff’s own statements,
constituted evidence regarding Plaintiff’s physical and mental limitations, and that the existing
medical sources contained sufficient evidence for the ALJ to make a determination regarding
Plaintiff’s alleged impairments. The Court therefore finds the ALJ satisfied his duty to fully
and fairly develop the record.
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 is
hereby affirmed. The undersigned further finds that the Plaintiff’s Complaint should be, and is
hereby dismissed with prejudice.
IT IS SO ORDERED this 3rd day of July, 2017.

/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE

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