Walford v. Colvin

Filing 15

OPINION AND ORDER denying 10 Motion for Summary Judgment. Signed by U.S. District Judge Charles B. Kornmann on March 28, 2014. (DLC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

PILED
APR 0 7 lJol'l

NORTHERN DIVISION

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JULIE M. WALFORD,
CIV 13-1002
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Plaintiff,
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OPINION AND ORDER
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-vs*
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.c.

§ 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for
disability insurance benefits. I have conducted a de novo review of the record. I find that the
Commissioner's decision is supported by substantial evidence on the record as a whole.

BACKGROUND
Plaintiff was born in 1957. She is a high school graduate and studied medical assisting in
vocational school for one year. She worked part time from 1976 to 1986 and worked full time
from 1987 to 2009. She has experience doing computer data entry for a sales and service
business, doing claims work for an insurance company, being an administrative assistant/office
manager for a parts and service company and working as a buyer/planner (also a computer job)
for a manufacturer.
In September 2009, she accepted her employer's offer for a voluntary layoff with three
months severance pay and she never went back to work. She applied for disability insurance
benefits on February 19, 2010, alleging a disability onset date of September 19, 2009.
At the time of her disability claim plaintiff was taking medications for depression,
interstitial cystitis (painful bladder syndrome), anxiety, fibromyalgia, rapid heart beat and high
cholesterol. She explained in her claim:

The pain of fibromyalgia, depression and anxiety issues are too intense to
work at a job. My depression and anxiety issues are not changing with
medication because of my sensitivity to these medications, which involves
side effects I cannot handle. For three months I have been working on
getting better by changing medications and exercises. My depression and
anxiey (sic) is not improving. The fibromyalgia pain is still there. The
change in weather continuously affects my pain. I have had these
symptoms for years and they are not improving, but they are getting worse.

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The pain I feel is nerve pain and there is no cure for it. This is my main
disability. I cannot work any more because the pain keeps getting worse
every year. Which (sic) makes my depression and anxiety worse.
Dr. Kevin Whittle issued a residual functional capacity assessment on March 26,2010,
wherein he listed plaintiffs primary diagnosis as fibromyalgia, secondary diagnosis as irritable
bowel syndrome, and other alleged impairments as GERD and interstitial cystitis. Dr. Whittle
determined that:
The plaintiff has a medically determinable impairment. In her function
report she cites no limitations in the independent performance of her
ADLs. She is able to make simple meals, do chores and shop. She cited
limitations in numerous physical abilities and alleged pain and fatigue.
The degree of her alleged limitations is not supported by the records in the
file. Her statements are found to be partially credible.
Whittle opined that plaintiff was limited to medium level work with no further limitations.
A psychiatric review and mental residual functional capacity assessment were completed
by M. Dilger on April 20, 2010. It was determined that plaintiff had medically determinable
depression and anxiety impairments that had improved. The degree of functional limitation was
described as mild in plaintiff s daily living activities and social functioning and moderate in
maintaining concentration and persistence of pace. The assessment states that the evidence does
not establish that any of plaintiffs mental health conditions were chronic or were more than
moderately limiting.
Plaintiffs claim was denied on April 27, 2010. Plaintiff filed a request for
reconsideration on May 13,2010.

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Jerry 8uchkoski, Ph.D., conducted a case analysis of plaintiffs records on June 23, 2010,
and concluded that plaintiff was "doing better with changes in medication ... Major functional

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impairment appears to be secondary to her medical condition."
Plaintiffs claim was denied on reconsideration on June 28, 2010, after considering new
medical reports from June 2010, on the following basis:
You state that you are disabled due to depression, anxiety, fibromyalgia,
dysthymic disorder, interstitial cystitis, gastroesophageal reflux disease
and irritable bowel syndrome. While the medical records document
problems with [the foregoing medical problems] the records also show
successful treatment. While you have pain due to your fibromyalgia it
does not severely limit normal daily activities. Your ability to think,
remember, understand and communicate is not severely restricted. The
evidence does not show any other condition that would severely limit your
ability to work.
On September 2, 2010, plaintiff requested a hearing before an Administrative Law Judge
("ALJ"), explaining that she disagreed with the denial of benefits
[8]ecause my pain from fibromyalgia is severe enough that I cannot work.
It causes anxiety and depression and hard to concentrate on anything else.

The stress of a job increases the pain and anxiety.
A hearing was held on July 1, 2011, before ALJ Marsha Stroup. Tom Audet, a vocational
expert, was present. The Administrative Law Judge ("ALJ") issued a decision on August 9,
2011, denying plaintiff s claim for disability. The ALJ determined that plaintiff has severe
impairments of depression and fibromyalgia and that the impairments more than minimally
affected her then current ability to perform basic work activities. Her impairments were not
"listed" impairments. The ALJ further found that plaintiff has the residual functional capacity to
perform sedentary work as long as she avoided work environments that are stressful and as long

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as she had the ability to alternate between sitting and standing positions as needed.
Plaintiff filed a request to the Appeals Council for review of the ALl's decision. She
contended that the ALJ erred at items 3, 4, and 5:
I also have anxiety disorder which impairs me to have social contacts
outside of immediate family and makes it difficult to get to work. The
[antidepressant] helps some, but I can only take a small amount because I
am very sensitive and have side effects. ((sic) drowsiness and
unsteadiness) The anxiety attack consists of crying and not being able to
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stop or so anxious I cannot concentrate on my job duties ... I also wish to
repeat my statements of my fibromyalgia in the workplace: Most days the
pain is so intense that it is difficult to think about anything else. I try
standing, stretching, and walking during work and it does not help. This
makes me frustrated, anxious and depressed. And those symptoms all
together make my fibromyalgia flair up even worse.
The paragraphs on mental impairment, and etc. are missing the fact that I
am not working. The combination of daily living and working do not
work for me. Now I am able to function daily, but when I was working it
was so difficult to just get through the day that I would collapse when I got
home and sleep and get depressed because it was so hard to get through
the day, if I did ... Now, I can rest when needed. Also, my coworkers
were seeing how much pain I was in, or how anxious, or how sad. Dealing
with that part of the work place was just as difficult. And there is always
stress and drama at the work place which increases my anxiety and pain.
The medical findings paragraph states that there was improvement. Please
note that these findings were stated during the time I was not working.
The disabling condition of body pain is still present and the pain reliever
only help (sic) for a little while and I cannot take another one until 6 hours
later. Please note that the pain and anxiety has gotten worse as I age. The
fibromyalgia diagnosis in 2000 and being able to work until 2009 is
correct, but please take into consideration my attendance and my leave of
absence and my mental state during those years. I was hospitalized in (sic)
3/20/09 through 4/9/09 because I had given up on life. I took short term
disability until 5/7/2009. I returned to work in which I had a very hard
time coping, but stayed until 9/19/09. I wish I could show my mental and
physical conditions while I was working through 2008 and 2009, but this
is not the disability date on my application and I am not sure there is
enough doctor notes to really show how I (sic) bad I was doing.
The Appeals Council denied her request for review on November 28,2012. Although the
Appeals Council received medical records from October 2012, those records were not relied
upon in determining whether plaintiff was disabled as of the date of the ALl's decision. The
ALl's decision is deemed the final decision of the Commissioner. Phillips v. Colvin, 721 F.3d
623,625 (8th Cir. 2013). Plaintiff filed the instant appeal in federal district court.

DECISION
An individual is considered to be disabled if, inter alia, she is unable "to engage in any
substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). An
individual shall be determined to be disabled "only if [her] physical or mental impairment or
impairments are of such severity that [she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
"To be eligible for disability insurance benefits, a claimant has the burden of establishing
the existence of a disability under the Act." Pearsall v. Massanari, 274 F .3d 1211, 1217 (8th Cir.
2001). Judicial review of the Commissioner's decision that claimant has failed to establish by a
preponderance of the evidence that she is not disabled within the meaning of the Social Security
Act is limited to determining whether the Commissioner's decision is supported by substantial
evidence in the record as a whole. Kamann v. Colvin, 721 F.3d 945,950 (8th Cir. 2013).
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might
accept as adequate to support a conclusion." Kamann v. Colvin, 721 F.3d at 950 (quoting Kelley
v. Callahan, 133 F.3d 583, 587 (8th Cir.l998)). "We consider both evidence that detracts from
the ALJ's decision, as well as evidence that supports it, but we will not reverse simply because
some evidence supports a conclusion other than that reached by the ALJ." McDade v. Astrue,
720 F.3d 994, 998 (8th Cir. 2013) (internal citations omitted). "If, after reviewing the record, the
court finds it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the [ALJ's] findings, the court must affirm the [ALJ's] decision." Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
The ALJ used the familiar five-step sequential evaluation to determine disability:
In step one, the ALJ decides whether the claimant is currently engaging in
substantial gainful activity; if the claimant is working, [she] is not eligible
for disability insurance benefits. In step two, the ALl determines whether
the claimant is suffering from a severe impairment. If the claimant is not
suffering a severe impairment, [she] is not eligible for disability insurance
benefits. At the third step, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in Appendix 1
of the regulations (the "listings"). If the claimant's impairment meets or
equals one of the listed impairments, [she] is entitled to benefits; ifnot, the
ALJ proceeds to step four. At step four, the ALJ determines whether the

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claimant retains the "residual functional capacity" (RFC) to perform his or
her past relevant work. If the claimant remains able to perform that past
relevant work, [she] is not entitled to disability insurance benefits. If [she]
is not capable of performing past relevant work, the ALl proceeds to step
five and considers whether there exist work opportunities in the national
economy that the claimant can perform given his or her medical
impairments, age, education, past work experience, and RFC. If the
Commissioner demonstrates that such work exists, the claimant is not
entitled to disability insurance benefits.
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal C.F.R. citations omitted).
Plaintiff contends the ALl erred in her identification of plaintiffs medically determinable
impairments. The ALl determined that plaintiff has severe impairments of depression and
fibromyalgia. The ALl did address her other claimed conditions but held that, since those
conditions are not listed impairments, they would be considered instead as part of her residual
functional capacity.
Plaintiff contends the ALl erred by failing to properly evaluate plaintiffs subjective
complaints of pain. The ALl did not find the plaintiffs claims regarding the extent of her
limitations to be credible.
Although an ALl may reject a claimant's subjective allegations of pain
and limitation, in doing so the ALl "must make an express credibility
determination detailing the reasons for discrediting the testimony, must set
forth the inconsistencies, and must discuss the Polaski factors." Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir.1998).
Burress v. Apfel, 141 F.3d 875,880-81 (8th Cir. 1998). "Polaski requires the ALl to consider:
(1) the claimant's daily activities; (2) the duration, frequency and intensity of pain; (3) dosage,

effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5)
functional restrictions. Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996) (citing Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995)." Burress v. Apfel, 141 F.3d at 881 n. 10. The ALl
"may not disregard a claimant's subjective complaints solely because the objective medical
evidence does not fuJly support them." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The absence of an objective medical basis which supports the degree of
severity of subjective complaints aJleged is just one factor to be considered
in evaluating the credibility of the testimony and complaints ... The
adjudicator is not free to accept or reject the claimant's subjective
complaints solely on the basis of personal observations. Subjective

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complaints may be discounted if there are inconsistencies in the evidence as
a whole.

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Id. "The ALJ [is] not required to discuss methodically each Polaski consideration, so long as he

acknowledge[s] and examine[s] those considerations before discounting [the claimant's] subjective
complaints." McDade v. Astrue, 720 F.3d at 998 (quoting Lowe v. Apfel, 226 F.3d 969, 972 (8th
Cir. 2000)).
The AU did consider the foregoing, although not by specifically naming the Polaski
factors. Plaintiff testified before the ALJ that the fibromyalgia caused pain when she worked but
had gotten progressively worse. She treated with a chiropractor once every three months and saw
a medical doctor to obtain her pain pills. Although she was on Lyrica and Hydrocodone, she
described her pain as always between 7 and 10 on a ten point scale. The ALJ did consider

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plaintiff's claimed pain but determined that she was only mildly restricted by pain. He considered
her testimony that her condition improved with exercise, that she was able to live independently,
perform household chores, drive, shop, and take care of herself. She spent her time visiting her
mother, taking walks with her daughters, and playing with her grandchild.
The AU stated that plaintiff's medically determinable impairments could reasonably cause
the symptoms she testified to but "the claimant's statements concerning the intensity, persistence
and limiting effects ofthese symptoms are not credible to the extent they are inconsistent with the
above residual capacity assessment." Under Polaski, the AU "may not disregard a claimant's
subjective complaints solely because the objective medical evidence does not ful1y support them."

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Polaski v. Heckler, 739 F.2d at 1332. In the present case, the objective medical evidence does not
support the extent of plaintiff s claimed pain "at all." "While pain may be disabling if it precludes
a claimant from engaging in any form of substantial gainful activity, the mere fact that working
may cause pain or discomfort does not mandate a finding of disability." Perkins v. Astrue, 648
F.3d 892, 900 (8th Cir. 2011) (quoting Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)).
Plaintiff complains that the ALJ wrongly relied upon the fact that she worked for many
years despite suffering from fibromyalsia and failed to consider that her condition had gotten
more disabling over the years. The record shows that plaintiff did not stop working because her
condition had worsened but instead because she was laid off. Further, plaintiff s medical records
did not reflect an increasing level of disabling pain. In fact, her medical records repeatedly

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showed that her fibromyalgia was well-managed with pain medications. Plaintiffs condition
was certainly more manageable to her when she was not working. The ALJ incorporated this fact
into her finding that plaintiff cannot return to her past relevant work as the demands of such work
exceed her functional capacity.
Plaintiff contends the ALJ erred in determining her residual functional capacity. She
contends the ALJ failed to consider her claimed disabling effects of fibromyalgia and wrongly
relied upon the lack of medical evidence to support the existence of a greater limitation on her
functional capacity. However, the ALJ specifically noted that the determination of plaintiff s
functional capacity was based upon plaintiffs own testimony. Further, the ALJ's determination
was consistent with the independent medical examiners' determination of plaintiff s functional
capacity.
Plaintiff testified before the ALJ that her depression went "hand in hand" with the
severity of her fibromyalgia symptoms. She claimed she saw a psychologist once a month,
although she admitted there were times she did not see her psychologist for six months. She saw
a psychiatrist every three months to check on her psychiatric medications. At the time of the
hearing, the medications were helping her symptoms but her anti-anxiety medication made her
sleepy so she was taking only half the recommended dose twice daily. Plaintiff testified that
sometimes her medications make her feel like a "zombie." She testified that she is limited to
walking four blocks at a time and that she naps for several hours every day. She stated that she is
doing better since she left her job because she does not have "the extra stress, anxiety of the
people and their dramas."
Plaintiff claims the ALJ failed to properly consider the limitations caused by her mental
health conditions. The ALJ devoted a great portion of her decision evaluating the effect that
plaintiffs depression and anxiety had upon her residual functional capacity. The ALJ relied
upon an independent functional capacity assessment which concluded that, at most, her mental
health conditions had a moderate effect upon her ability to perform job functions.
"It is the claimant's burden, and not the Social Security Commissioner's burden, to prove
the claimant's" functional capacity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
The ALJ determines a claimant's functional capacity "based on all relevant evidence, including

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medical records, observations of treating physicians and others, and claimant's own descriptions
of [her] limitations." Jd. Substantial evidence in the record supports the ALl's determination of
plaintiffs functional capacity.
Plaintiff contends the ALJ erred in failing to meet her burden to identifY occupations that
exist in significant numbers that plaintiff could perform. The ALJ described plaintiff s claimed
limitations as well as the limitations the ALJ found to be credible. Included in the questions
posed to the vocational expert were inquiries about not only about the effects of fibromyalsia and
depression, but also the effects that her claimed anxiety would have on plaintiffs ability to work
an eight hour day. The vocational expert testified that plaintiff had clerical, receptionist, and data
entry skills which were transferrable to less stressful jobs that were abundant in the regional
economy. Plaintiff testified that she would be unable to sit for eight hours a day or for even four
hours. She claimed she could only tolerate a part-time job. The ALJ specifically inquired of the
vocational expert whether there existed jobs abundant in the economy where plaintiff could
alternate sitting and standing and which would cause less anxiety than her former occupation and
the vocational expert identified jobs meeting the criteria.
Ultimately, plaintiff "bears the burden of proving disability and providing medical
evidence as to the existence and severity of an impairment." Kamann v. Colvin, 721 F.3d at 950.
She did not satisfY her burden. As is true in many disability claims, plaintiff is experiencing
medical issues that cause her pain and difficulty. The issue is, however, whether her medical
conditions prevent her from working. The ALJ determined that her conditions are not disabling
within the meaning of the Social Security Act and that there are jobs abundant in the regional and
national economy that plaintiff could perform despite her limitations. The decision of the ALJ is
supported by substantial evidence on the record as a whole.
CONCLUSION
I find that the Commissioner's decision is supported by substantial evidence on the record

as a whole. Accordingly,
IT IS ORDERED:

1) The plaintiffs motion (Doc. 10) for summary judgment is denied.

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2) The final administrative decision to the effect that the claimant is not eligible for
benefits under the Social Security Act is affirmed.
Dated

thisd~y of md 2014.
BY THE COURT:

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ATTEST:
JOSEPH HAAS, CLERK

CHARLESB.KORNMANN

United States District Judge

B~b.!~~h
(SEAL)

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