Smith v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 21, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
LILI ROSE SMITH
vs.

PLAINTIFF
Civil No. 6:10-cv-06090

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Lili Rose Smith (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her applications for
Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of
disability under Titles II and XVI of the Act. The parties have consented to the jurisdiction of a
magistrate judge to conduct any and all proceedings in this case, including conducting the trial,
ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 5.1
Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final
judgment in this matter.
1.

Background:
Plaintiff protectively filed her disability applications on February 12, 2008. (Tr. 11, 137-144).

In her applications, Plaintiff alleged she was disabled due to rectal bleeding, a neurological condition,
and epilepsy. (Tr. 153). She claimed the following regarding her limitations: “I have seizures, rectal
bleeding with no diagnosis, dizzy spells, headaches, nervousness, panic attacks, memory problems,

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The docket numbers for this case are referenced by the designation “ECF No. ____” The transcript pages
for this case are referenced by the designation “Tr.”

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left side pain, face pain and swelling.” Id. Plaintiff alleged an onset date of November 1, 2006. Id.
These applications were denied initially and again on reconsideration. (Tr. 94-97).
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 113-134). An administrative hearing was held on November 17, 2009 in
Hot Springs, Arkansas. (Tr. 34-93). At the administrative hearing, Plaintiff was present and was
represented by counsel, Terry Diggs. Id. Plaintiff, Vocational Expert (“VE”) Dale Thomas, and
Plaintiff’s mother testified at this hearing. Id. On the date of the 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) (2008), and had obtained a high school diploma and received her LPN license. (Tr. 45).
On March 10, 2010, subsequent to this hearing, the ALJ entered an unfavorable decision on
Plaintiff’s applications. (Tr. 11-29). In this decision, the ALJ found Plaintiff met the insured status
requirements of the Act through March 31, 2008. (Tr. 13, Finding 1). The ALJ determined Plaintiff
had not engaged in Substantial Gainful Activity (“SGA”) since November 1, 2006, her alleged onset
date. (Tr. 13). The ALJ determined Plaintiff had the following severe impairments: epilepsy, irritable
bowel syndrome, headaches, depression with anxiety, and substance abuse. (Tr. 14, Finding 2; Tr.
24, Finding 9). The ALJ also determined Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in Appendix 1 to Subpart
P of Regulations No. 4 (“Listings”). (Tr. 14-16, Finding 3; Tr. 24-26, Finding 10).
The ALJ then evaluated Plaintiff’s impairments both with her substance abuse and without
her substance abuse. (Tr. 16-29). First, the ALJ made several determinations while considering the
fact she had a substance abuse problem. (Tr. 16-24). The ALJ found Plaintiff retained the RFC to
perform the following with her substance abuse problem:
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After careful consideration of the entire record, the undersigned finds that, based on
all of the impairments, including the substance use disorders, Ms. Smith has the
residual functional capacity to perform less than a full range of sedentary work due to
her exertional and non-exertional limitations. Currently, the claimant has significant
cognitive limitations and memory problems to the degree that she cannot understand,
remember, and carry out even simple instructions, exercise judgment in even simple
work related situations and would require constant supervision. She is unable to deal
with the general public, and cannot deal with changes in a routine work setting,
tolerate criticism or handle normal work production stress. She is unable to complete
a normal work-day and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods. The claimant also needs to observe routine dizziness
precautions, which are avoiding unprotected heights, open and dangerous machinery,
the operation of automotive equipment or carrying firearms, which still further erodes
her occupational base.
(Tr. 16-23, Finding 4). Based upon this RFC, the ALJ determined Plaintiff was unable to perform
her PRW. (Tr. 23). The ALJ also determined considering her age, education, work experience, and
RFC, there were no other jobs existing in significant numbers in the national economy that Plaintiff
could perform if she continued to have a substance abuse problem. (Tr. 24, Finding 8).
Second, the ALJ made several determinations assuming Plaintiff stopped her substance abuse.
(Tr. 24-29). The ALJ determined Plaintiff would have the following RFC if she stopped her
substance abuse:
If Ms. Smith stopped the substance abuse, she would have the residual functional
capacity to perform a less than full range of light work as defined in 20 CFR
404.1567(b) and 461.967(b). She can lift up to 10 pounds frequently and 20 pounds
occasionally. She can stand/walk with normal breaks 6 hours out of an 8-hour day and
sit with normal breaks 6 hours out of an 8-hour day. She has an unlimited ability to
use hand and foot controls, push and pull, and has no postural, manipulative, or visual
limitations. Due to seizures, she should avoid concentrated exposure to hazards such
as heights, use of firearms, and dangerous machinery. Mentally, the claimant is
limited to unskilled work. This is work where interpersonal contact is routine but
superficial, the complexity of tasks is learned by rote with few variables and little
judgment would be required; any required supervision would need to be simple,
direct, and concrete.

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(Tr. 26, Finding 11). The ALJ determined if Plaintiff stopped her substance abuse, she would
continue to be unable to perform her PRW. (Tr. 28, Finding 12).
The ALJ then evaluated whether Plaintiff could perform other work assuming she stopped her
substance abuse. The ALJ determined if Plaintiff stopped her substance abuse, considering her age,
education, work experience, and RFC, there would be a significant number of jobs in the national
economy she could perform. (Tr. 28, Finding 14). The VE testified at the administrative hearing
regarding this issue. (Tr. 28). Specifically, the VE testified that given all Plaintiff’s vocational
factors, a hypothetical individual would be able to perform the requirements of representative light,
unskilled occupations such as a production and electronics worker with 6,300 such jobs in Arkansas
and over 300,000 such jobs nationwide. (Tr. 28). The ALJ then determined Plaintiff would not be
disabled if she stopped her substance abuse. Id. Further, because Plaintiff would not be disabled if
she stopped her substance abuse, the ALJ found her substance abuse was a contributing factor
material to the determination of disability, and Plaintiff had not been disabled within the meaning of
the Act at any time from her alleged onset date through the date of his decision. (Tr. 28-29, Finding
15).
On May 10, 2010, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable
decision. (Tr. 6). See 20 C.F.R. § 404.968. On October 29, 2010, the Appeals Council declined to
review this disability determination. (Tr. 1-3). On November 30, 2010, Plaintiff filed the present
appeal. ECF No. 1. Both Parties have filed appeal briefs. ECF Nos. 9-10. This case is now ready
for decision.
2.

Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
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. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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. See 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 his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“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), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
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in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
3.

Discussion:
In her appeal brief, Plaintiff raises the following three arguments for reversal: (A) the ALJ

erred in ruling that her substance abuse was a “contributing factor material to the determination of
disability”; (B) the ALJ erred by ruling her continued seizure activity represented a failure to take
anti-seizure medications; and (C) the ALJ erred by failing to consider the combined effect of her
impairments. ECF No. 9 at 13-20. In response, Defendant argues that substantial evidence supports
the ALJ’s finding of substance abuse, the ALJ properly considered Plaintiff’s RFC, and the ALJ
properly considered the combined impact of Plaintiff’s impairments. ECF No. 10 at 5-19. This Court
will consider all of Plaintiff’s arguments for reversal.
A.

Substance Abuse

The SSA’s regulations require additional findings regarding a claimant’s substance abuse
when the record evidence indicates the presence of alcoholism or drug addiction. See 20 C.F.R. §§
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404.1535, 416.935. Specifically, the ALJ is required to determine whether a claimant’s alcohol or
drug abuse is a “contributing factor material” to disability. Id. The key factor an ALJ examines when
determining whether drug addiction or alcoholism is a “contributing factor material” to the
determination of disability is whether a claimant is still disabled absent the use of drugs or alcohol.
Id. The regulations require the ALJ to evaluate which physical or mental limitations would remain
if the claimant discontinued his or her substance abuse and determine whether those limitations would
still be disabling. Id. If the claimant’s remaining limitations are not disabling, drug and alcohol abuse
is deemed a contributing factor material to the disability determination and the claimant cannot
receive benefits. Id. Further, it is the claimant’s burden to show that he or she would still be disabled
even without the use of alcohol or drugs. See Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir.
2003).
In this case, the record provides evidence of Plaintiff’s prescription and non-prescription drug
abuse. Plaintiff alleged an onset date of November 1, 2006. (Tr. 11). Prior to that date, Plaintiff’s
treating physician Dr. R. Paul Tucker, M.D. indicated Plaintiff may have been abusing prescription
drugs. (Tr. 219, 228). Thereafter, on June 20, 2008, Dr. Tucker again indicated Plaintiff was
potentially abusing prescription drugs. (Tr. 298). Notably, he stated Plaintiff was denied a
prescription allegedly because she was trying to have it refilled twice. Id.
On January 21, 2009, Dr. Lowell V. Ozment, M.D. noted Plaintiff “seems to be a drug seeker
to some extent.” (Tr. 397). On September 2, 2009, Plaintiff presented the emergency room at St.
Joseph’s complaining of seizures and abdominal pain. (Tr. 361). Due to Plaintiff’s altered level of
consciousness, doctors obtained a drug screen that was positive for barbiturates, benzodiazepines,
opiates, and Darvocet. (Tr. 362). Doctors at St. Joseph’s noted that Plaintiff had a chronic drug abuse
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problem and stated that she had been misusing and abusing her prescription drugs at that time. (Tr.
374). In addition, Plaintiff’s mother testified Plaintiff had a tendency of taking too much of her
prescribed medication. (Tr. 71-72). Plaintiff’s mother also testified Plaintiff did drugs at least one
time in the past two years. (Tr. 75). Plaintiff’s mother stated, “She had went off and she did do drugs
but she just done two or three hits, as they call them, and that was it.” Id.
The record also supports the ALJ’s finding that if Plaintiff stopped her substance abuse, she
would not be disabled. One significant piece of evidence on this issue was Plaintiff’s six-day hospital
admission at St. Vincent’s from October to November of 2009. (Tr. 402). During that admission,
Plaintiff’s doctors eliminated narcotic medications and placed her on the proper medications for her
depression and anxiety. Id. Doctors discharged her with a GAF score of 50 after treatment while her
GAF score on admission was 16. Id. Such evidence indicates that when Plaintiff is not abusing
drugs, her impairments can be controlled with medication.
Further, the ALJ’s finding is supported by the testimony from Plaintiff’s mother. (Tr. 23, 64,
71). She testified that after this hospitalization, she controlled Plaintiff’s medications. Id. After
controlling those medications, it appears Plaintiff improved considerably. Id. Indeed, by the time of
the November of 2009 hearing, Plaintiff answered all of her questions in a logical manner, testified
that she took care of her personal needs without help, made her bed, and helped around the house.
Id.
Plaintiff disputes the ALJ’s finding regarding her substance abuse. ECF No. 9 at 13-15. She
raises four specific claims regarding the ALJ’s finding on this issue. First, Plaintiff claims the ALJ’s
finding that Plaintiff takes “hits” of “stuff” or drugs from her father’s next-door neighbor is not
supported by the record. Id. Plaintiff’s mother, however, testified to this:
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Q:

Where does her father live?

A:

He lives here in Hot Springs.

Q:

And she kind of goes and stays with him as I understand it?

A:

She’ll go up and stay with him a few days. And this is the problem that she
has going up there is next door it’s a person that if she wants to get a hit or
something like that, she could.

(Tr. 75-76). Thus, the ALJ’s finding on this issue is supported by the record.
Second, Plaintiff disputes the ALJ’s finding that Plaintiff “does not exhibit good judgment
when abusing drugs, and has had suicidal ideation and suicide attempts in the past due to the effect
of her prescription drug abuse as well as the history of occasional cocaine abuse.” (Tr. 15). Plaintiff
argues “there is no evidence of such abuse in this case.” ECF No. 9 at 13. Plaintiff’s mother,
however, testified regarding Plaintiff’s attempt to commit suicide in late October of 2009. (Tr. 7172). A urine drug screen from that admission was positive for the benzodiazepines and the pain
reliever propoxyphene. (Tr. 401). This test was positive even though Plaintiff reported she was
“currently on no medications.” Id.
Third, Plaintiff argues there was only evidence of a “single time when Ms. Smith [she] used
cocaine, and this was during a period when she was under stress while going through a divorce, and
it was, in any case, prior to April 2004.” ECF No. 9 at 13-14. Plaintiff’s mother testified, however,
testified Plaintiff did drugs at least one time in the past two years. (Tr. 75). Based upon the timing
of the hearing, two years before would have been in 2007. Thus, Plaintiff’s argument on this issue
is also meritless.
Fourth and finally, Plaintiff argues at length that the ALJ in the present action was biased
against her. ECF No. 9 at 14-15. Plaintiff argues, “One impressive fact about this case is that it is
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obvious that the Judge walked into the hearing room with the very firm preconception that Ms. Smith
was a chronic drug user, and this impression never left him.” Id. Despite Plaintiff’s bare claim on
this issue, an ALJ is presumed to be unbiased. See Perkins v. Astrue, 648 F.3d 892, 902 (8th Cir.
2011). Plaintiff bears the burden of rebutting this presumption. Id. In the present action, Plaintiff
has not produced sufficient evidence to rebut this presumption. Thus, this Court finds Plaintiff’s final
claim on this issue is also without merit.
B.

Use of Seizure Medication

Plaintiff claims the ALJ improperly considered her seizure impairment. ECF No. 9 at 15-17.
Plaintiff claims her seizures are not controlled by her medication, and she properly takes her seizure
medication as prescribed. Id. The ALJ found the following regarding Plaintiff’s medical compliance:
“The claimant obviously has not been medically compliant with her seizure medications, and has
apparently experienced an increase in seizures as a result.” (Tr. 18-19).
Despite finding Plaintiff was not compliant with her seizure medication, however, the ALJ
still found Plaintiff had restrictions due to her seizures: “Due to seizures, she should avoid
concentrated exposure to hazards such as heights, use of firearms, and dangerous machinery.” (Tr.
26). Thus, Plaintiff is incorrect in her claim that the ALJ did not consider her seizure impairment in
formulating her RFC.
Further, Plaintiff’s claim that her seizures cause her to be disabled is not supported by the
record. First, Plaintiff has a long history of seizures which she alleges began twenty years ago. (Tr.
18, 242). Despite her claim they began twenty years ago, she did not allege a disability due to
seizures and other impairments until 2006. (Tr. 153). The fact Plaintiff was able to work for over
twenty years despite her seizures certainly detracts from her credibility.
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Second, Plaintiff’s medical records do support the ALJ’s finding that she did not take her
prescription medication . As far back as 2003, her physician found she “sometimes forgets a dose.”
(Tr. 242). Other medical records also indicate her dosage was very low considering her prescription.
(Tr. 306, 309-310, 313). Her physician indicated on December 14, 2007 that due to such a low
dosage indicates “a question of compliance.” (Tr. 304). Because these records indicate she was not
compliant with her prescribed course of treatment, the ALJ finding that Plaintiff should not be
considered disabled due to her seizures is supported by substantial evidence in the record. See Schultz
v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment can be controlled by
treatment or medication, it cannot be considered disabling).
C.

Combination of Plaintiff’s Impairments

Plaintiff claims the ALJ erred by failing to consider the combined impact of her impairments.
ECF No. 9 at 17-19. She argues that she “clearly suffers from severe impairments in both exertional
and non-exertional areas” which cause her to be disabled. Id. Plaintiff references her alleged
epilepsy, irritable bowel syndrome, headaches, depression with anxiety, and substance abuse as well
as her low blood pressure, shortness of breath, cardiac arrhythmia, renal disease, and arthritis in
support of her claim that she is disabled. Id.
Under the facts in the present case, this Court finds that the ALJ properly considered
Plaintiff’s impairments in combination. The Social Security Act requires the ALJ to consider the
combined effect of all of the claimant’s impairments without regard to whether any such impairment,
if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523 (2010). In the
present action, in reviewing these claimed impairments, the ALJ stated that Plaintiff’s “impairment
or combination of impairments” do not meet the requirements of the Listings. (Tr. 24-26, Finding
10) (emphasis added). Further, the ALJ discussed in detail each of Plaintiff’s alleged impairments
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and formulated her RFC based upon those specific impairments. (Tr. 16-23). These statements are
sufficient in the Eighth Circuit to establish that the ALJ properly considered the combined effect of
a plaintiff’s impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that
statements such as “the evidence as a whole does not show that the claimant’s symptoms . . . preclude
his past work as a janitor” and “[t]he claimant’s impairments do not prevent him from performing
janitorial work . . .” sufficiently establish that the ALJ properly considered the combined effects of
the plaintiff’s impairments).
Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly
considered the Plaintiff’s impairments in combination. Plaintiff has alleged that she suffers from a
number of impairments. ECF No. 9 at 17-19. However, this Court is not required to find a claimant
is disabled simply because he or she has alleged a long list of medical problems. The ALJ’s opinion
sufficiently indicates that the ALJ properly considered the combined effects of Plaintiff’s
impairments, and the ALJ properly considered the severity of the combination of the Plaintiff’s
impairments. See Hajek, 30 F.3d at 92.
4.

Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits

to Plaintiff, is supported by substantial evidence and AFFIRMS the decision of the SSA. A judgment
incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 21st day of December, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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