Allgood v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on August 4, 2014. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ANNA MARIE ALLGOOD
vs.

PLAINTIFF
Civil No. 6:13-cv-06041

CAROLYN COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Anna Marie Allgood (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the
Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her
applications for Supplemental Security Income (“SSI”), Disability Insurance Benefits (“DIB”), and
a period fo 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. 9.1 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 May 14, 2010. (Tr. 15, 141-150).
Plaintiff alleged she was disabled due to right leg, hip, back, and hand injuries from an all terrain
vehicle (“ATV”) accident. (Tr. 162). Plaintiff alleged an onset date of January 1, 2006. (Tr. 141,
145). These applications were denied initially and again upon reconsideration. (Tr. 81-87, 90-93).
Plaintiff then requested an administrative hearing on her applications. (Tr. 96-97). This
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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.”

hearing was held on November 16, 2011 in Hot Springs, Arkansas. (Tr. 33-76). Plaintiff was
present and was represented by counsel, Sherri McDonough, at this hearing. Id. Plaintiff testified
at this hearing. Id. On the date 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) (2008). (Tr. 39). The Plaintiff testified she completed the ninth grade and obtained a
General Equivalency Diploma (“GED”). (Tr. 41).
On February 15, 2012, the Administrative Law Judge (“ALJ”) entered an unfavorable
decision denying Plaintiff’s application for SSI and DIB. (Tr. 12-26). In this decision, the ALJ
found Plaintiff met the insured status requirements of the Act through December 31, 2006. (Tr. 17,
Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since
January 1, 2006, her alleged onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had the
following severe impairments: spine disorder, anxiety disorder, and a mood disorder. (Tr. 17,
Finding 3). The ALJ also determined Plaintiff’s impairments or combination of impairments did not
meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to
Subpart P of Regulations No. 4 (“Listings”). (Tr. 18, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 19, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her claimed
limitations were not totally credible. Id. Second, the ALJ determined, based upon her review of
Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, the Plaintiff
retained the following RFC:
After careful consideration of the entire record, the undersigned finds that the
[Plaintiff] has the residual functional capacity to perform light work as defined in 20
C.F.R. 404.1567(b) and 416.967(b) except the following: occasionally climb stairs,
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balance, stoop, kneel, crouch, and crawl; never climb ladders; must avoid extreme
cold; must avoid extreme heat; must avoid vibrations; no overhead reaching; must
avoid hazards (for example, machinery and unprotected heights); able to perform
work where interpersonal contact is incidental to work performed; complexity of
tasks is learned and performed by rote, with few variables, little judgment, and where
supervision required is simple, direct, and concrete.
Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23, Finding 6). The ALJ
determined Plaintiff was unable to perform any past relevant work. Id. The ALJ however
determined there was other work existing in significant numbers in the national economy Plaintiff
could perform. (Tr. 24, Finding 10). The vocational expert (“VE”) testified at the administrative
hearing regarding this issue. (Tr. 64-76). Based upon the VE’s testimony, the ALJ determined
Plaintiff retained the ability to perform other work such as a sales attendant with 2,700 such jobs in
the region and 335,000 such jobs in the nation and as a charge account clerk with 2,500 such jobs
in the region and 237,000 such jobs in the nation. (Tr. 67, 71, 25, Finding 10). The ALJ then used
Medical-Vocational Guidelines Rules 202.21 and 202.14 to reach a conclusion of “not disabled,”
based on Plaintiff’s age, education, vocational background, and residual functional capacity. See 20
C.F.R. pt. 404, subpt. P, app. 2, § 202.20. (Tr. 24). The ALJ then determined Plaintiff had not been
under a “disability,” as defined by the Act, from January 1, 2006, through the date of the decision.
(Tr. 25, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 8). On
March 7, 2013, the Appeals Council declined to review this decision. (Tr. 1-3). On April 19, 2013,
Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court
on May 8, 2013. ECF No. 9. Both Parties have filed appeal briefs. ECF Nos. 12, 13. This case is

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now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
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 supporting 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 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
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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 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 claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 12, Pg. 1-20. Specifically, Plaintiff claims the ALJ
erred: (1) in failing to evaluate the severity of Plaintiff’s impairments, specifically her ability to
stand, walk, [and] sit due to her peripheral neuropathy, chronic back pain, right leg radiculopathy,
and restless leg syndrome, and (2) in not giving proper consideration of Plaintiff’s chronic pain and
the impact it has on Plaintiff’s ability to maintain attention and concentration. ECF No. 12, Pg. 1.
The Plaintiff also claims (3) there were several particular factual errors in the ALJ’s decision which
made the conclusions drawn by the ALJ not based upon substantial evidence. ECF No. 12, Pg. 3.
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In response, the Defendant argues (1) the ALJ properly evaluated the severity of Plaintiff’s
impairments and accounted for any limitations due to such impairments in assessing Plaintiff’s RFC,
and (2) the ALJ properly discounted Plaintiff’s credibility. ECF No. 13, Pg. 1. The Court will
address each of the arguments above.
A. Impairments
A “severe impairment is defined as one which ‘significantly limits [the claimant’s] physical
or mental ability to do basic work activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)
(quoting 20 C.F.R. § 416.920(c)). An impairment or combination of impairments is not severe when
medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to work. 20
C.F.R. § 416.921. Alleged impairments may not be considered severe when they are stabilized by
treatment and otherwise are generally unsupported by the medical record. Johnston v. Apfel, 210
F.3d 870, 875 (8th Cir. 2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)
(plaintiff bears the burden to establish severe impairments at Step Two of the sequential evaluation).
Plaintiff claims the ALJ erred in failing to evaluate the severity of Plaintiff’s impairments,
specifically her ability to stand, walk, [and] sit due to her peripheral neuropathy, chronic back pain,
right leg radiculopathy, and restless leg syndrome. ECF No. 12, Pg. 1. Plaintiff also claims the
ALJ’s statement regarding her limitations does not properly account for Plaintiff’s peripheral
neuropathy, restless leg syndrome, and chronic pain. Id. at Pg. 4. In Finding 3, the ALJ ultimately
determined only the Plaintiff’s spine disorder, anxiety disorder, and a mood disorder were severe
because in combination, these impairments more than minimally affect [her] ability to perform basic
work activities. (Tr. 17, Finding 3). The Court finds the ALJ did not fail to evaluate the severity of
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Plaintiff’s remaining medically determinable impairments, but rather found the impairments to be
nonsevere. In the decision, the ALJ wrote the [Plaintiff’s] medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the [RFC]. (Tr. 21).
There is evidence in the decision showing the ALJ fully considered her peripheral
neuropathy, chronic back pain, right leg radiculopathy, and restless leg syndrome. For instance, the
ALJ acknowledged her 2003 rollover accident while driving a recreational vehicle. (Tr. 21, 287).
Two years later, an MRI scan of her right knee revealed normal marrow signal, intact ligaments, and
no evidence of knee joint effusion. (Tr. 21, 234). She also underwent a non-invasive vascular
examination in an effort to fully evaluate the origin of her alleged foot pain, [and] the vascular
examination was normal. (Tr. 21, 235-236). X-rays of the Plaintiff’s lumbosacral spine for a
Physical Consultative Examination showed normal disc spacing and a well-maintained alignment.
(Tr. 22, 241). The ALJ wrote the objective evidence did not fully support the [Plaintiff’s] allegations
of severe, debilitating pain. (Tr. 22).
The remaining evidence after the alleged onset date shows she was diagnosed with
neuropathy of the right leg, restless leg syndrome, and chronic back pain. (Tr. 227, 228, 277, 278,
303-304, 307). Her physicians, however, decided to treat her conservatively with medications such
as Clonazepam, Cymbalta, and Gabapentin. Id.; See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.
1993) (holding a treating physician’s conservative treatment was inconsistent with plaintiff’s
allegations of disabling pain). Plaintiff was not referred to a specialist or prescribed further treatment
besides prescription medications. (Tr. 227-307). There is also no evidence the Plaintiff required
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emergency treatment in a hospital due to her debilitating condition. Id. Based on the foregoing, the
Court finds there is substantial evidence to support the ALJ finding she properly evaluated the
severity of the Plaintiff’s impairments and accounted for any limitations due to such impairments
in assessing the RFC.
B. RFC Determination
Plaintiff claims the ALJ erred in not giving proper consideration of Plaintiff’s chronic pain
and the impact it has on Plaintiff’s ability to maintain attention and concentration. ECF No. 12, Pg.
1. The ALJ determined the Plaintiff had the RFC to perform unskilled, light work with some
additional limitations. (Tr. 19, Finding 5). RFC is defined as the individual’s maximum remaining
ability to do sustained work activity in an ordinary work setting “on a regular and continuing basis.”
20 C.F.R. §§ 404.1565 and 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using
all relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
Limitations resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R.
§§ 404.1565(a)(3) and 416.945(a)(3). The United States Court of Appeals for the Eighth Circuit has
held 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering medical
evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer, 245 F.3d at 704; Dykes v.
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Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam) (“To the extent [claimant] is arguing residual
functional capacity may be proved only by medical evidence, we disagree.”). Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative determination
reserved to the Commissioner. Cox, 495 F.3d at 620; 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2)
(2012); 20 C.F.R. §§ 404.1546, 416.946 (2011).
In the decision, the ALJ thoroughly evaluated the DDS opinions the Plaintiff is concerned
about in her brief. Two DDS consultants reviewed the medical evidence of record, including [the
Mental Consultative Examiner’s] opinions, and they opined the [Plaintiff] had moderate limitations
with her ability to maintain attention and concentration for extended periods. (Tr. 22, 258, 280).
The DDS consultants concluded while [her] mental impairment had some impact on functioning,
she is able to perform unskilled work where interpersonal contact is incidental to tasks performed
and the complexity of tasks is learned and performed by rote; involving few variables and little
judgment. (Tr. 23, 260, 280). Further, she requires supervision that is simple, direct, and concrete.
Id. The ALJ gave their opinions significant weight and cited several reasons for the weight
assignment: they were supported with clinical findings from the Mental Consultative Examination,
the opinions were generally consistent with the substantial evidence of record, and they are given
by medical personnel familiar with the Social Security Act and regulations. (Tr. 23).
Plaintiff claims the ALJ erred in his RFC determination by not discussing in the presented
hypotheticals the Plaintiff’s inability to maintain attention and concentration due to her chronic pain
as found by two DDS consultants. ECF No. 12, Pg. 6. The Court finds the Plaintiff’s claim is
incorrect because the DDS consultants did not find she was unable to maintain attention and
concentration, but rather determined she was moderately limited in her ability to maintain attention
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and concentration for extended periods of time. (Tr. 258, 260, 280). The DDS consultants took the
finding into consideration when assessing she could still perform unskilled work. Id.; 20 C.F.R. §§
404.1568(a), 416.968(a) (2008). The ALJ gave the DDS consultants significant weight and took
their opinions into account when formulating the RFC. (Tr. 19, Finding 5).
The RFC determination was also consistent with other opinions in the record regarding her
attention and concentration capabilities. For instance, a Mental Consultative Examination was
conducted by Dr. Wright, and he found her concentration was adequate the day of the examination.
(Tr. 251). The Court finds the Plaintiff’s attention and concentration abilities were properly assessed
by the DDS consultants and the Mental Consultative Examiner, and there was no need to distinguish
whether the limitations were due to chronic pain, her mental impairments, or a combination of both.
At the hearing, the ALJ presented a hypothetical question to the VE which included the definition
of unskilled work, and the VE responded stating the Plaintiff could perform other jobs. (Tr. 69-70).
The Court finds the preceding hypothetical question does take into consideration the Plaintiff’s
limitations with maintaining attention and concentration.
C. Credibility
The Plaintiff claims the one consistent complaint throughout [her] medical records is her
chronic pain. ECF No. 12, Pg. 6. In this matter, the ALJ determined the [Plaintiff’s] allegations of
severe and disabling pain and discomfort are not supported by the evidence of record as a whole.
(Tr. 23), See Hutton v. Apfel, 175 F. 3d 651, 655 (8th Cir. 1999) (The ALJ may discount subjective
complaints of pain if inconsistencies are apparent in the evidence as a whole). In determining a
claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’ ” Wagner v. Astrue, 499
F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2002)).
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Assessing and resolving credibility issues is a matter that is properly within the purview of the ALJ.
Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will not substitute its own credibility
opinion for that of the ALJ). 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). The court should, “ defer to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and substantial evidence.”
Perks v. Astrue , 687 F.3d 1086, 1091 (8th Cir. 2012). “The ALJ is not required to discuss each
Polaski factor as long as the analytical framework is recognized and considered.” Tucker v.
Barnhart, 363 F.3d 781, 783 (8th Cir.2004); Polaski v. Heckler, 739 F.2d 1320, 1321-1322 (8th Cir.
1984).
The Court finds the ALJ performed a proper Polaski analysis when assessing the Plaintiff’s
subjective complaints. For instance, although the Plaintiff alleged functional limitations, the ALJ
wrote she was able to wash dishes, perform light housekeeping chores, prepare simple meals,
maintain personal hygiene, and drive an automobile. (Tr. 21, 50-51, 189-192, 251). The ALJ also
noted the Plaintiff’s most recent full-time position ended when she moved from Louisiana to
Arkansas, and the end of her substantial employment did not involve any disability related
conditions. (Tr. 21, 162). The ALJ determined the [Plaintiff’s] statements concerning the intensity,
persistence, and limiting effects of these symptoms were not credible to the extent they are
inconsistent with the [RFC]. (Tr. 21). The Court defers to the ALJ’s credibility determination
because it was based on multiple valid reasons, See Finch v. Astrue, 547 F.3d 933, 935-36 (8th Cir.
2008). Because the ALJ’s credibility determination was supported by good reasons and substantial
evidence, we conclude it is entitled to deference. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.
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2006).
D. Substantial Evidence
The Plaintiff claims there are several particular factual errors in the ALJ’s decision which
made the conclusions drawn by the ALJ not based upon substantial evidence. ECF No. 12, Pg. 3.
The Court concurs there are factual errors cited in the decision that do not pertain to the Plaintiff.
(Tr. 18). Although it would have been preferable for the ALJ to only refer to activities the Plaintiff
actually participated in, the error, was harmless. See Hensley v.. Barnhart, 352 F.3d 353, 357 (8th
Cir. 2003) (ALJ's incorrect determination of claimant's literacy harmless error where result was same
when correct Medical–Vocational Guidelines rule was applied); Hall v. Bowen, 857 F.2d 1210, 1212
(8th Cir. 1988) (same result even if ALJ understood the listing). The factual errors were cited to
determine whether the Plaintiff had an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. (Tr. 18, Finding 4).
After a review of the record, the Court determines Finding 4 of the ALJ’s decision would be
the same even if the factual errors were not taken into consideration. In regards to the first functional
area of activities of daily living, the ALJ found she had mild limitation. (Tr. 18). The Plaintiff
reported she could prepare simple meals, perform light cleaning such as washing dishes and
sweeping with assistance, and drive a vehicle. (Tr. 51, 191-192). She is able to go shopping once
every two weeks. (Tr. 192). During the Mental Consultative Examination, Dr. Wright wrote the
Plaintiff does not need help with personal activities of daily living such as dressing and bathing. (Tr.
251). Dr. Wright also noted she likes to take care of her animals outside. Id. In regards to the
second functional area of social functioning, the ALJ determined she had mild limitation. (Tr. 18).
The Plaintiff spends time with others by talking daily and she goes to the grocery store on a regular
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basis. (Tr. 193). The Plaintiff does not have any problems getting along with family, friends,
neighbors, and authority figures. (Tr. 194-195). Dr. Wright wrote the Plaintiff has a number of
friends. (Tr. 251). She testified in church she has to sit by the aisle and only attends outdoor
funerals. (Tr. 53).
In regards to the third functional area of concentration, persistence, or pace, the ALJ found
she had moderate limitation. (Tr. 18). She can pay bills, count change, handle a savings account,
and use a checkbook or money orders. (Tr. 192). Her hobbies include reading, watching television,
and computer games. (Tr. 193). Although she cannot concentrate as well and it is harder, she still
reads. (Tr. 193). The Plaintiff reported she is fine at following written instructions and good at
following spoken instructions. (Tr. 194). She completed the Function Report without assistance.
(Tr. 196). The Court finds the above records constitute substantial evidence to support the ALJ’s
Finding 4. For the reasons stated above, an award of benefits is unwarranted.
4. Conclusion:
Based on the foregoing, the undersigned finds the decision of the ALJ, denying benefits to
Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating
these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 4th day of August 2014.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE

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