Jackson v. Astrue
Filing
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MEMORANDUM OPINION - Substantial evidence in the record as a whole supports the ALJ's findings. The Commissioner's denial of plaintiff's benefits claim will be affirmed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JENNIFER M. JACKSON,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)
4:12CV3041
MEMORANDUM OPINION
This matter is before the Court on complaint of
plaintiff Jennifer Jackson (“Jackson”) for review of defendant’s
denial of social security disability benefits.
The Court finds
the Commissioner’s decision should be affirmed.
I. Factual Background
Plaintiff alleges disability starting July 25, 2009,
due to pain associated with scoliosis.
Prior to that date,
plaintiff worked full time as a cashier, bank teller, and
customer service representative.
She reported that she left the
workforce in 2009 in part because of her disability and in part
to attend college.
ages five and seven.
She is divorced with two dependent children,
She takes care of her children, but her
mother and neighbor help her with more demanding household
activities like sweeping, mopping, and carrying clothes baskets
downstairs to the laundry facilities.
In June of 2009, plaintiff saw Dr. Wendy Gosnell for
pain in her back and shoulder.
She was diagnosed with scoliosis
and prescribed hydrocodone and a muscle relaxant.
She began
physical therapy but was discharged for failing to show up for
scheduled appointments.
Plaintiff reported to Dr. Gosnell that
physical therapy did not alleviate her back pain.
In July of
2009, per plaintiff’s request, Dr. Gosnell wrote a note to
plaintiff’s employer indicating that plaintiff should not lift
more than ten pounds, perform repetitive arm movements, bend, or
stoop.
Plaintiff’s medical records indicate that from August
of 2009 to July of 2010 she frequently requested additional
prescription narcotics from Dr. Gosnell and other doctors before
her prior prescription was due to run out.
This precipitated a
notation in her file regarding possible drug seeking behavior and
a policy among plaintiff’s doctors of funneling all narcotic pain
management through Dr. Gosnell to ensure that plaintiff did not
receive overlapping prescriptions.
In addition to prescription
medication, plaintiff received trigger-point injections that
provided only temporary relief.
Throughout this period, physical
examinations by her doctors resulted in relatively normal results
in terms of strength and range of motion.
Plaintiff frequently
met with her physicians regarding her pain including two
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incidents in which she indicated worse pain because she was
moving boxes and camping.
In March of 2010, plaintiff saw Dr. Jonathan Fuller, a
surgeon recommended by Dr. Gosnell, who advised spinal
reconstruction surgery to correct the curves in plaintiff’s
spine.
Plaintiff was advised to schedule surgery once she quit
smoking.
As of the October 2011 hearing, plaintiff reported that
she continued to smoke and had not pursued surgery because she
could not find anyone to care for her children while she
recovered.
In June of 2010, Dr. Gerald Spethman, a physician with
the state Disability Determination Services completed a physical
assessment based on plaintiff’s medical records.
Though Dr.
Spethman concluded that plaintiff’s scoliosis would prevent
plaintiff from performing strenuous activities like lifting heavy
boxes, he determined that plaintiff could lift up to ten pounds,
could sit for up to six hours and stand and walk for up to two
hours in an eight-hour work day, and could occasionally stoop,
crouch, kneel, and crawl.
Dr. Glen Knosp, also with Disability
Determination Services, affirmed Dr. Spethman’s assessment.
At the October 2011 hearing, the ALJ posed a
hypothetical to a vocational expert regarding a claimant who
could lift ten pounds, walk or stand for up to two hours and sit
for up to six hours in an eight-hour work day, and occasionally
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stoop, crouch, kneel, and crawl.
The expert concluded that such
a claimant could perform sedentary jobs including account clerk
(170 jobs in Nebraska), document preparer (160 jobs in Nebraska),
and optical-goods assembler (200 jobs in Nebraska).
The ALJ found that plaintiff’s scoliosis was a
legitimate impairment and that she could not resume her previous
employment.
However, the ALJ found that plaintiff’s objective
testimony regarding the intensity, persistence, and limiting
effects of her symptoms was not credible.
The ALJ found that the
plaintiff continued to refuse surgery without good reason, that
her impairment did not meet the criteria of any listed
impairments in the regulations, and that her residual functional
capacity allowed her to perform work for which there was a
significant number of jobs in the economy.
II. Standard of Review
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.”
Martise v. Astrue, 641 F.3d 909, 920
(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).
Substantial evidence “is less than a
preponderance, but enough that a reasonable mind might accept as
adequate to support a conclusion.”
Phillips v. Astrue, 671 F.3d
699, 702 (8th Cir. 2012) (quoting Moore v. Astrue, 572 F.3d 520,
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522 (8th Cir. 2009)).
However, the Court may not reverse the
Commissioner’s decision “simply because some evidence may support
the opposite conclusion.”
Perkins v. Astrue, 648 F.3d 892, 897
(8th Cir. 2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 813
(8th Cir. 2009)).
III. Discussion
Jackson’s argument that the ALJ’s findings were not
supported by substantial evidence rests on two assignments of
error: (1) the ALJ did not adequately support his determination
of plaintiff’s credibility; and (2) the ALJ improperly determined
the plaintiff’s residual functional capacity (“RFC”) and
erroneously concluded that there were sufficient jobs in the
economy at plaintiff’s RFC.
A. Findings of Non-Disability
By itself, a decision to forgo a prescribed course of
treatment without good reason justifies a finding of nondisability.
20 C.F.R. § 416.930(b).
The regulations list five
situations that would constitute “good reason”: (1) treatment is
against applicant’s religious beliefs, (2) treatment is for a
cataract in one eye when applicant has an impairment in the other
eye, (3) a similar previous surgery on the applicant was
unsuccessful, (4) treatment is very risky for the applicant, or
(5) treatment involves amputation of applicant’s extremity.
C.F.R. § 416.930(c).
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In addition, courts have found good reason
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where the applicant’s finances do not allow treatment.
See,
e.g., Brown v. Sullivan, 902 F.2d 1292, 1295 (8th Cir. 1990)
(citing Tome v. Schweier, 724 F.2d 711, 714 (8th Cir. 1984)).
Courts have also considered whether failing to follow a doctor’s
orders to lose weight should be addressed differently.
See,
e.g., Stone v. Harris, 657 F.2d 210, 212 (8th Cir. 1981).
Plaintiff has not asserted any of these circumstances.
Plaintiff asserts only that she would have no one to help watch
her children while she recovers but offers no explanation as to
why she cannot get assistance from her current support system or
those who cared for her children while she worked and attended
school.
The ALJ’s finding of non-disability on this basis was
supported by the evidence and sufficient to determine the outcome
of the case.
The ALJ’s finding that plaintiff’s impairment did not
meet or equal any of the listed impairments in 20 C.F.R. § 404,
Subpart P, Appendix 1 is also determinative and supported by
substantial evidence.
Thus, the Court will only briefly address
the plaintiff’s asserted errors.
B. Credibility Determination
Plaintiff takes issue with the ALJ’s reference to
plaintiff’s activities of daily living in determining her
credibility.
Activities of daily living are an acceptable
consideration for purposes of determining plaintiff’s credibility
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as to intensity, persistence, and limiting effects of plaintiff’s
symptoms.
See Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir.
2005); Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir.
2004).
Still, an ALJ’s credibility findings must be supported by
substantial evidence.
(8th Cir. 1992).
Robinson v. Sullivan, 956 F.2d 836, 839
If the ALJ gives “good reasons” for not
crediting the claimant that are supported by the record, the
Court will defer to the ALJ’s judgment.
Id. at 841.
In the present case, the ALJ cited many reasons for his
credibility determination, including plaintiff’s continued
requests for overlapping prescriptions for narcotics from
multiple doctors, her failure to comply with a course of medical
treatment that doctors believed would relieve her symptoms, the
absence of any evidence that plaintiff’s condition had worsened
since her prior employment and attendance at school, and
functional examinations that yielded relatively normal objective
findings.
The ALJ’s express finding that the plaintiff’s
assertions regarding intensity, persistence, and limiting effects
of her symptoms is supported by substantial evidence.
C. Determination of Residual Functional Capacity
First, plaintiff vaguely asserts that Residual
Functional Capacity is a “medical question.”
The Court reads
this as a narrow application of the more broad requirement that
the ALJ’s determination of plaintiff’s RFC must be supported by
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substantial evidence.
Here the medical records provided by
plaintiff’s own doctors largely indicate normal range of motion
and physical ability.
The plaintiff herself indicated that she
is capable of lifting ten pounds with one hand and fifteen pounds
with both hands.
The ALJ also cited the RFC opinions of non-
examining doctors who reviewed the plaintiff’s medical records.
The ALJ’s determination that plaintiff could perform sedentary
work involving lifting up to ten pounds and sitting for most of
the day is supported by substantial evidence.
See Hacker v.
Barnhart, 459 F.3d 934, 938 (8th Cir. 2006) (finding the ALJ’s
RFC determination sufficiently supported by the evidence despite
the lack of a reliable RFC opinion from an examining physician).
Next, plaintiff asserts that the hypothetical posed to
the vocational expert lacked sufficient detail regarding the
plaintiff’s limitations.
In fact, the hypothetical was much more
detailed than the purported language in plaintiff’s brief.
It
included the creditable limitations the ALJ found were supported
by the record.
Plaintiff’s assertions that the evidence did not
support the ALJ’s finding that there were a significant number of
jobs in the economy fails by its own standard.
Plaintiff cites
to the Eighth Circuit’s standard that 500 jobs within the region
is a “sufficient number.”
added.
Plaintiff seems to have simply miss-
The total number of jobs attested to by the vocational
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expert and cited in the plaintiff’s brief is 530 jobs (not 345 as
asserted in plaintiff’s brief).
IV. Conclusion
Substantial evidence in the record as a whole supports
the ALJ’s findings.
The Commissioner’s denial of plaintiff’s
benefits claim will be affirmed.
A separate order will be
entered in accordance with this memorandum opinion.
DATED this 11th day of September, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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