Dickerson v. Astrue
Filing
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ORDER and OPINION affirming Commissioner's final decision granting in part and denying in part Plaintiff's claims for benefits. Signed on 03/21/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
LINDA DICKERSON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 11-5063-CV-SW-ODS
ORDER AND OPINION AFFIRMING COMMISSIONER’S FINAL DECISION
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CLAIMS FOR
BENEFITS
In April 2007, Plaintiff filed an application for disability benefits under Title II. In
August 2009, she filed an application for supplemental security income benefits under
Title XVI. Both applications alleged Plaintiff became disabled on May 16, 1995.1
Following a hearing, an ALJ determined Plaintiff was disabled effective July 2, 2002, but
before that date she retained the residual functional capacity to work. Plaintiff appeals
the unfavorable portions of this ruling. After reviewing the Record and the parties’
arguments, the Court affirms the Commissioner’s decision.
I. BACKGROUND
Plaintiff was born in May 1950; she completed high school and one year of
college and has prior work experience as a line worker in a plastics factory. In August
1995 she established care with Dr. R.F. Williams upon moving to Missouri from
Connecticut. She told Dr. Williams that she was “on intermittent medication and
1
The ALJ’s opinion indicates Plaintiff’s alleged onset date is May 16, 1995. R. at
17, 19. This date is confirmed by some of the paperwork in the file. E.g., R. at 77.
However, during the hearing, Plaintiff’s attorney identified May 16, 1996, as the onset
date. R. at 1106.
counseling for at least fifteen years, was doing well on a combination of Prozxac and
Ativan, but had run out of Ativan. Dr. Williams provided a prescription for Ativan,
arranged to obtain Plaintiff’s records, and made an appointment for the following month.
At that appointment Plaintiff indicated that she was “getting along fairly well” and had
“[n]o specific complaints.” R. at 146. In October Plaintiff reported experiencing
headaches, which Dr. Williams indicated were “possibly vascular or stress.” The
following month Plaintiff’s headaches were “not nearly as bad.” R at 147. In December,
Plaintiff was suffering from sinusitus, but “[o]therwise [was] doing well;” she was not
depressed and was not experiencing significant headaches. However, in February
1996 she reported feeling depressed, but Dr. Williams attributed this to the stress of
having two daughters and a granddaughter move into the house. Plaintiff indicated she
was trying to see a psychiatrist. R. at 148.
That month Plaintiff was also evaluated by a nurse (Mary Parker) at the Ozark
Center. Nurse Parker indicated Plaintiff suffered from depression, assessed her GAF
score at 70, and recommended she continue medications. Nurse Parker also
suggested Plaintiff should undergo a psychiatric evaluation and might benefit from
outpatient, individual therapy. R. at 131-34. In April, Plaintiff saw Dr. Kent Worthen at
the Ozark Center, chiefly complaining of seeing shapes moving in her peripheral vision.
Dr. Worthen diagnosed Plaintiff as suffering from a dysthymic disorder and a panic
disorder without agoraphobia. He recommended that Plaintiff undergo certain blood
tests and continue receiving counseling from Nurse Parker. R. at 129-30. Plaintiff saw
Nurse Parker approximately nine times between February and September 1996. Notes
from these sessions reflect varying degrees of anxiety and sadness on Plaintiff’s part,
mostly attributed to her then-present family situation and dealing with abuse she
suffered as a child. The notes do not reflect hallucinations or any serious
consequences or limitations from Plaintiff’s depression and anxiety. R. at 121-28.2 In
August, Plaintiff told Dr. Williams that “things have been going pretty well” and indicated
2
Plaintiff was briefly hospitalized in May 1996 for what Dr. Williams described as
a “stress reaction.” Plaintiff’s medications were adjusted and she was encouraged to
exercise. R. at 149.
2
the counseling and medication were helping “quite a bit.” R. at 149. In December,
Plaintiff reported she opted to stop taking Prozac and was “taking some herbs instead.”
Plaintiff was “getting along pretty well.” R. at 150. Positive reports continued through
1997.
In February 1998, Plaintiff went to the psychiatric office of Dr. Steven Kory,
where she was seen by Nurse Nancy Price.3 Plaintiff indicated she was less depressed
and her “down days” were less frequent. Her “[m]ood is better and more stable. No
crying spells” and she had “[n]o psychotic or delusional thinking.” She reported seeing
“scurrry[ing] things in her peripheral vision.” Plaintiff was instructed to continue taking
Remeron and Xanax. R. at 177-78. At her next visit in April, Plaintiff advised Dr. Kory
that she had stopped taking the anti-depressant because she believed it caused her to
gain weight, so he prescribed a different medication. R. at 176. Plaintiff later reported
that the replacement medication worked “fine” and that her headaches were due to
stress. R. at 179. Later that month, Plaintiff saw Dr. Williams and told him that
medication was working well and that the stress-induced headaches were her biggest
problem. In May, Plaintiff told Dr. Williams the headaches “finally cleared up” and he
noted Plaintiff “seems to be coping with things better.” R. at 153-54.
In late September, Plaintiff returned to Dr. Williams and reported that she had
been “[g]etting along reasonably well up until the last three or four weeks.” Plaintiff was
experiencing a lot of stress due to her daughter’s involvement in a car accident and
other situational problems. R. at 155. In October, she went to a counseling session
with Nurse Parker, who indicated Plaintiff suffered from major depression, panic
disorder, and PTSD, and assessed Plaintiff’s GAF score at 60. R. at 139.
In contrast, in January 1999 Plaintiff went to Dr. Kory’s office4 and saw Dr. Jayne
Stillings and reported “overall feeling much better.” Plaintiff had been experiencing
3
The record from this visit suggests it was not her first to Dr. Kory’s office, but
there are no earlier records from his office.
4
It appears that Dr. Kory and Dr. Stillings were at the psychiatric clinic at St.
John’s Regional Medical Center.
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fewer mood swings and her medication was effective. Plaintiff made similar positive
statements in February 1999. R. at 173.
In March 2000, a sleep study revealed that Plaintiff suffered from severe
obstructive sleep apnea. A CPAP machine proved to provide normal respiration during
sleep. R. at 256-60.
There are no other medical records regarding Plaintiff’s condition before July 2,
2002.
During the hearing, Plaintiff described some of the traumatic events in her life
and seemed to indicate she was unable to work after her hospitalization in May 1996.
R. at 1106-07. According to her testimony, since that date she slept “a lot,” was too
frightened to go out in public, and was unsuccessful in her attempts to obtain effective
mental health treatment. R. at 1107-08. Plaintiff reported having uncontrollable crying
spells on a daily basis, and having problems sleeping. R. at 1109-10. She testified she
could not have worked from 1996 to 2000 because she “couldn’t think straight” and “the
thought of going out and getting a job and working” was more than she could do. R. at
1109.
The ALJ found Plaintiff suffered from the following severe impairments: arthritic
changes at her L5-S1 vertebrae and the continuing effects of a prior elbow surgery.
The ALJ found Plaintiff’s anxiety, depression, PTSD and dysthymia were non-severe
because Plaintiff’s medical records did not indicate any vocational limitations from these
conditions. R. at 19-20.
II. DISCUSSION
A. Standards
“[R]eview of the Secretary’s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary’s conclusion. [The Court] will not reverse a decision simply because some
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evidence may support the opposite conclusion.” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).
One of the issues in this case involves the ALJ’s assessment of Plaintiff’s
credibility. The familiar standard for analyzing a claimant’s subjective complaints is set
forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted):
While the claimant has the burden of proving that the
disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and
effect relationship between the impairment and the degree of
claimant’s subjective complaints need not be produced. The
adjudicator may not disregard a claimant’s subjective
complaints solely because the objective medical evidence
does not fully support them.
The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged is just
one factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full
consideration to all of the evidence presented relating to
subjective complaints, including the claimant’s prior work
record, and observations by third parties and treating and
examining physicians relating to such matters as:
1. The claimant’s daily activities;
2. the duration, frequency and intensity of the pain
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s
subjective complaints solely on the basis of personal
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observations. Subjective complaints may be discounted if
there are inconsistencies in the evidence as a whole.
739 F.2d at 1322.
B. Finding of Non-Severity and Credibility Assessment
Plaintiff first contends the ALJ erred in concluding her mental impairments were
not severe at step two of the five-step analysis. If an impairment has “no more than a
minimal effect on the claimant’s ability to work , then it does not satisfy the requirement
of step two. . . . Severity is not an onerous requirement for the claimant to meet, but it is
also not a toothless standard . . . .” Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir.
2007). Plaintiff has ably demonstrated she suffered from mental impairments, but the
Record does not demonstrate the ALJ erred in concluding they had no more than a
minimal effect on her ability to work. Substantial evidence supports the ALJ’s finding,
most notably in the reports from Plaintiff’s treating professionals. None of these reports
indicated there was more than a minimal effect on Plaintiff’s ability to work. Moreover,
Plaintiff’s testimony was contradicted by her statements to these professionals, both in
terms of (1) statements that differed from her testimony and (2) her failure to report to
those treating her the conditions she described in her testimony. The ALJ was entitled
to conclude Plaintiff was more truthful when she was seeking treatment than when she
was seeking benefits, and was also entitled to conclude that the Record as a whole
demonstrated Plaintiff’s mental impairments imposed a minimal effect on her ability to
work.
C. Inadequate RFC
Plaintiff next contends the ALJ failed to properly ascertain her residual functional
capacity (“RFC”) in light of her elbow surgery. However, Plaintiff has not identified for
the Court any portion of the Record that would substantiate a more limiting RFC. The
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Court is neither obligated nor inclined to search the Record to ascertain whether there is
evidence supporting Plaintiff’s contention.
III. CONCLUSION
The Commissioner determined Plaintiff was disabled effective July 2, 2002, but
before that date she retained the residual functional capacity to work. This final
decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: March 21, 2012
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