Cockrell v. Social Security Administration

Filing 10

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 4, 2010. (dmc)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION

S T A C Y COCKRELL

P LA IN T IF F

v.

C IV IL NO. 08-6118

M IC H A E L J. ASTRUE, Commissioner S o cial Security Administration M E M O R A N D U M OPINION

DEFENDANT

P lain tiff, Stacy Cockrell, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial rev iew of a decision of the Commissioner of the Social Security Administration (Commissioner) d en yin g her claim for supplemental security income (SSI) benefits under the provisions of Title X V I of the Social Security Act (Act). In this judicial review, the court must determine whether th ere is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g). I. P ro ced u ra l Background: P lain tiff protectively filed her current application for SSI on June 1, 2006, alleging an in ab ility to work since February 1, 2004, due to a history of depression, epileptic seizures, anxiety an d asthma.1 (Tr.58-60). An administrative hearing was held on May 1, 2008, at which Plaintiff ap p eared with counsel and testified. (Tr. 475-489). By written decision dated June 24, 2008, the ALJ found that during the relevant time period P lain tiff had an impairment or combination of impairments that were severe. (Tr.16). Specifically,

1

It is a long established holding of the Eighth Circuit that SSI benefits are not payable for any period prior to the date a claimant files a SSI application. See Cruse v. Bowen, 867 F.2d1183, 1185 (8th Cir. 1989). In other words, the relevant time period in SSI cases starts with the date the SSI application is filed. Id. Therefore, the relevant time period in this case is June 1, 2006, through June 24, 2008.

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th e ALJ found Plaintiff had the following severe impairments: a seizure disorder. However, after rev iew in g all of the evidence presented, he determined that Plaintiff's impairments did not meet o r equal the level of severity of any impairment listed in the Listing of Impairments found in A p p en d ix I, Subpart P, Regulation No. 4. (Tr. 16). The ALJ found Plaintiff retained the residual fu n ctio n al capacity (RFC) to perform work activity at all exertional levels with the exception that sh e needed to observe routine seizure precautions, which are avoiding unprotected heights, open an d dangerous machinery, and the operation of automotive equipment. (Tr. 16). The ALJ found P lain tiff was able to return to her past relevant work as a cashier. (Tr. 19). Plaintiff then requested a review of the hearing decision by the Appeals Council, which d en ied that request on October 28, 2008. (Tr. 2-4). Subsequently, Plaintiff filed this action. (Doc. 1 ). This case is before the undersigned pursuant to the consent of the parties. (Doc. 4). Both p arties have filed appeal briefs, and the case is now ready for decision. (Docs. 6,9). II. E v id en ce Presented: A t the administrative hearing held before the ALJ on May 1, 2008, Plaintiff was thirty years of age and testified that she had obtained a high school education. (Tr. 481). The record reflects Plaintiff's past relevant work consists of work as a cashier. (Tr. 87, 487). T h e medical evidence prior to the relevant time period reveals Plaintiff sought treatment fo r seizures, bronchitis, abdominal pain, headaches, nausea, gastroenteritis, diarrhea, back pain, a cough, congestion, asthma, and a kidney infection. (Tr. 184, 192, 197, 212, 227, 240, 247, 274, 2 7 6 , 279, 281, 284, 288, 291, 295, 297, 299, 302, 305, 308, 355, 358, 360, 362, 368, 372, 374, 3 7 7 , 382, 386, 393, 396, 404, 406, 409, 418, 447, 471). Regarding Plaintiff's seizure activity, m ed ical records show Plaintiff was non-compliant with her seizure medication on April 10, 2002, Ju ly 20, 2002, September 3, 2002, June 22, 2004, January 14, 2005, February 2, 2005, February

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1 3 , 2005, February 26, 2005, March 3, 2005, April 3, 2005, April 5, 2005, April 9, 2005, May 11, 2 0 0 5 , July 19, 2005, August 9, 2005, September 17, 2005, December 13, 2005, January 4, 2006, Jan u ary 18, 2006, January 24, 2006, March 26, 2006, April 1, 2006, and April 29, 2006. T h e medical evidence during the relevant time period reflects the following. On June 12, 2 0 0 6 , Plaintiff received treatment at the St. Joseph's Mercy Health Center (St. Joseph's) em ergen cy room for a sun burn after having been out at the lake swimming all day. (Tr. 273). O n June 21, 2006, Plaintiff entered the St. Joseph's emergency room complaining of to n gu e and ear pain. (Tr. 270-271). Plaintiff reported she bit her tongue two days ago and that she h ad been trying to chew again but could not without severe pain. Plaintiff also reported it hurt to m o v e her left ear. Plaintiff reported she had been swimming a lot and thought that might be the p ro b lem . Plaintiff was noted to have a seizure disorder and to be taking Tegretol. Plaintiff was d iagn o sed with otitis externa and laceration status post bite injury. Plaintiff was given a shot of T o rad o l and Phenergan and given Cipro otic ear drops. On June 23, 2006, Plaintiff entered the National Park Medical Center emergency room co m p lain in g of seizure activity and right ankle pain. (Tr. 200-205, 207-209, 211, 213-214, 216, 2 2 1 -2 2 2 , 224, 230, 233-234,236). Treatment notes indicate emergency service personnel reported P lain tiff was post ictal on the scene. Plaintiff also reported right hip pain and that she had been seen at St. Joe's four days ago. Plaintiff did not have another seizure during her emergency room v isit. Plaintiff was instructed not to drive until she had been cleared by her physician. (Tr. 205). III. A p p lica b le Law: T h is court's role is to determine whether the Commissioner's findings are supported by su b stan tial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2 0 0 2 ). Substantial evidence is less than a preponderance but it is enough that a reasonable mind

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w o u ld find it adequate to support the Commissioner's decision. The ALJ's decision must be affirm ed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d 9 6 4 , 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the C o m m issio n er'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 d ecid ed the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other w o rd s, if after reviewing the record it is possible to draw two inconsistent positions from the ev id en ce and one of those positions represents the findings of the ALJ, the decision of the ALJ m u st 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 o f 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, 2 7 4 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The A ct defines "physical or mental impairment" as "an impairment that results from anatomical, p h ysio lo gical, or psychological abnormalities which are demonstrable by medically acceptable clin ical and laboratory diagnostic techniques." 42 U.S.C. § § 423(d)(3), 1382(3)(c). A Plaintiff m u st show that her disability, not simply her impairment, has lasted for at least twelve consecutive m o n th s . T h e Commissioner's regulations require him to apply a five-step sequential evaluation p ro cess to each claim for disability benefits: (1) whether the claimant has engaged in substantial gain fu l activity since filing her claim; (2) whether the claimant has a severe physical and/or mental im p airm en t or combination of impairments; (3) whether the impairment(s) meet or equal an im p airm en t in the listings; (4) whether the impairment(s) prevent the claimant from doing past

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relev an t work; and, (5) whether the claimant is able to perform other work in the national economy giv en her age, education, and experience. See 20 C.F.R. § 416.920. Only if the final stage is reach ed does the fact finder consider the Plaintiff's age, education, and work experience in light o f her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1 9 8 2 ); 20 C .F.R. § 416.920. IV . D is c u s s io n : P lain tiff contends that the ALJ erred in concluding that the Plaintiff was not disabled. Defendant contends the record supports the ALJ's determination that Plaintiff was not disabled d u rin g the relevant time period of June 1, 2006, through June 24, 2008. A. S u b jectiv e Complaints and Credibility Analysis:

W e first 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 p resen ted by third parties that relates to: (1) Plaintiff's daily activities; (2) the duration, frequency, an d intensity of her pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and sid e effects of her medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1 3 2 0 , 1322 (8th Cir. 1984). While an ALJ may not discount a claimant's subjective complaints so lely because the medical evidence fails to support them, an ALJ may discount those complaints w h ere inconsistencies appear in the record as a whole. Id. As the United States Court of Appeals fo r the Eighth Circuit observed, "Our touchstone is that [a claimant's] credibility is primarily a m atter for the ALJ to decide." Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). A fter reviewing the administrative record, it is clear that the ALJ properly evaluated P lain tiff's subjective complaints. Although Plaintiff contends that her seizure disorder, respiratory p ro b lem s, and anxiety are disabling, the evidence of record does not support this conclusion.

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A review of the medical evidence reveals Plaintiff has been diagnosed and treated for a s e iz u re disorder. The ALJ pointed out while Plaintiff has experienced seizures, the evidence rev eals Plaintiff has also been non-compliant with her seizure medications. Brown v. Barnhart, 3 9 0 F.3d 535, 540-541 (8th Cir. 2004)(citations omitted)("Failure to follow a prescribed course of rem ed ial treatment without good reason is grounds for denying an application for benefits."); 20 C .F .R . § 416.930(b). Almost every time Plaintiff sought treatment in the emergency room for a seiz u re, she reported she had been out of her seizure medication or was not taking it as prescribed. Furthermore, the evidence reveals when Plaintiff was taking her medications, as prescribed, her seiz u res were well-controlled. See Hutton v. Apfel, 175 F.3d 651, 655 (8th cir. 1999)

(im p airm en ts amenable to treatment not disabling). Plaintiff argues she was non-complaint with taking her seizure medication because she was u n ab le to fill her prescriptions due to the lack of finances. The ALJ noted that while Plaintiff had b een referred to the Charitable Christian Medical Center (CCMC) to get help with treatment and o b tain in g her seizure medication, the record failed to show Plaintiff had ever sought treatment at C C M C or any other charitable organization or that she had been denied treatment due to the lack o f funds. (Tr. 311). Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that lack o f evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or hospitals d o es not support plaintiff's contention of financial hardship). Furthermore, the evidence reveals P lain tiff continued to smoke throughout the relevant time period. Clearly, the money Plaintiff used to purchase cigarettes could have been used to obtain her medication. W ith regard to Plaintiff's alleged respiratory impairments, the medical evidence reveals P lain tiff has been diagnosed with bronchitis and that she has been prescribed inhalers. The ALJ p o in ted out despite being instructed to stop smoking on numerous occasions, the evidence reveals

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P lain tiff continued to smoke. See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting th at a failure to follow prescribed treatment may be grounds for denying an application for b en efits); Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008). It is also noteworthy, the Plaintiff d id not seek treatment for her respiratory impairments during the relevant time period. See

Novotny v. Chater, 72 F.3d 669, 671 (8th Cir. 1995) (per curiam) (failure to seek treatment inconsistent with allegations of pain); Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995) (failure to seek treatment may be inconsistent with disability).
P lain tiff also alleged a history of depression and anxiety. However, a review of the record fails to show Plaintiff sought on-going and consistent treatment for any mental impairment. See G o w ell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (holding that lack of evidence of ongoing co u n selin g or psychiatric treatment for depression weighs against plaintiff's claim of disability). T h e complete evidence of record concerning her daily activities is also inconsistent with h er claim of disability. The evidence reveals Plaintiff's reports that she is able to watch television, read , feed her animals, clean her house and take care of her personal needs. (Tr. 96-97). Plaintiff also reported she was able to do outside chores and shop for food, clothing and personal items. (Tr. 98-99). Plaintiff reported she spent time with others every day. (Tr. 100). The record reflects P lain tiff was also able to spend an entire day swimming at the lake in June of 2006. This level of activ ity belies Plaintiff's complaints of pain and limitation and the Eighth Circuit has consistently h eld that the ability to perform such activities contradicts a Plaintiff's subjective allegations of d isab lin g symptoms. See Hutton v. Apfel, 175 F.3d 651, 654-655 (8th Cir. 1999) (holding ALJ's rejectio n of claimant's application supported by substantial evidence where daily activities­

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m ak in g breakfast, washing dishes and clothes, visiting friends, watching television and drivingw ere inconsistent with claim of total disability). T h erefo re, although it is clear that Plaintiff suffers with some degree of limitation, she has n o t established that she is unable to engage in any gainful activity. Accordingly, we conclude that su b stan tial evidence supports the ALJ's conclusion that Plaintiff's subjective complaints were not to tally credible. B. R F C Assessment: W e next turn to the ALJ's assessment of Plaintiff's RFC. RFC is the most a person can do d esp ite that person's limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using all relevant ev id en ce in the record. Id. This includes medical records, observations of treating physicians and o th ers, and the claimant's own descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 7 9 8 , 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resu ltin g from symptoms such as pain are also factored into the assessment. 20 C.F.R. §

4 0 4 .1 5 4 5 (a)(3 ). The United States Court of Appeals for the Eighth Circuit has held that a " claim an t'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 b y medical evidence that addresses the claimant's ability to function in the workplace." Lewis v. B arn h art, 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. In the present case, the ALJ considered the medical assessments of examining agency m ed ical consultants, Plaintiff's subjective complaints, and her medical records when he determined P la in tiff could perform work at all exertional levels with the observation of routine seizure p recau tio n s. Plaintiff's capacity to perform this level of work is supported by the fact that Plaintiff's

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ex am in in g physicians placed no restrictions on her activities that would preclude performing the R F C determined. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physicianim p o sed restrictions militates against a finding of total disability). Based on the record as a whole, w e find substantial evidence to support the ALJ's RFC determination. C. P la in tif f 's Past Relevant Work: A cco rd in g to the Commissioner's interpretation of past relevant work, a claimant will not b e found to be disabled if she retains the RFC to perform:

1 . The actual functional demands and job duties of a particular past relev an t job; or 2 . The functional demands and job duties of the occupation as g en era lly required by employers throughout the national economy.

2 0 C.F.R. §§ 404.1520(e); S.S.R. 82-61 (1982); Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir. 1 9 9 0 )(ex p ressly approving the two part test from S.S.R. 82-61). Therefore, even though a claimant cannot perform the actual demands of her particular past jo b , if she can carry out her job as it is generally performed in the national economy, she is not d isab led under the regulations. Evans v. Shalala, 21 F.3d 832, 834 (8th Cir. 1994). We note in this case the ALJ relied upon vocational expert testimony in finding Plaintiff able to perform her past relev an t work. See Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) ("The testimony of a v o catio n al expert is relevant at steps four and five of the Commissioner's sequential analysis, when th e question becomes whether a claimant with a severe impairment has the residual functional cap acity to do past relevant work or other work") (citations omitted) Accordingly, we believe su b stan tial evidence supports the ALJ's conclusion that Plaintiff can return to her past relevant work as a cashier.

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V.

C o n c lu s io n : A cco rd in gly, having carefully reviewed the record, the undersigned finds substantial

ev id en ce supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision should b e affirmed. The undersigned further finds that the Plaintiff's Complaint should be dismissed with p r e ju d ic e . DATED this 4th day of February 2010.

/s /

Erin L. Setser

HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE

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