Brown v. Social Security Administration, No. 3:2010cv00027 - Document 15 (E.D. Ark. 2010)
Court Description: MEMORANDUM OPINION AND ORDER that pltf's complt be dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge H. David Young on 12/28/2010. (lej)
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Brown v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KATHY BROWN PLAINTIFF v. NO. 3:10CV00027 HDY MICHAEL J. ASTRUE, Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER BACKGROUND. Plaint iff Kat hy Brown (“ Brown” ) began her at t empt t o obt ain benefit s by filing applicat ions for disabilit y insurance benefit s and supplement al securit y income benefit s pursuant t o t he provisions of t he Social Securit y Act (“ Act ” ). Her applicat ions were denied init ially, again upon reconsiderat ion, and lat er by an Administ rat ive Law Judge (“ ALJ” ) following a de novo administ rat ive hearing. The ALJ’ s decision was affirmed by t he Appeals Council and became t he final decision of t he Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ). Brown has now commenced t his proceeding pursuant t o 42 U.S.C. 405(g) and challenged t he Commissioner’ s final decision. -1- Dockets.Justia.com STANDARD OF REVIEW. The sole inquiry for t he Court is t o det ermine whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. The st andard requires t he Court t o t ake int o considerat ion “ t he weight of t he evidence in t he record and apply a balancing t est t o evidence which is cont rary.” See Heino v. Ast rue, 578 F.3d 873, 878 (8t h Cir. 2009) [int ernal quot at ions and cit at ions omit t ed]. THE ALJ’ S FINDINGS. The ALJ denied Brown’ s applicat ions based upon findings he made pursuant t o t he five st ep sequent ial evaluat ion process. At st ep one, he found t he following: “ [Brown] alleged t hat she became disabled on Oct ober 3, 1999. The record showed subst ant ial earnings every year from 1999 t hrough March 30, 2007. ... Work aft er t hat is considered unsuccessful work at t empt .” See Transcript at 10. On t he basis of t hose findings, he found t hat she engaged in subst ant ial gainful act ivit y from “ Oct ober 3, 1999, t he alleged onset dat e, t hrough March 30, 2007.” See Transcript at 10. At st ep t wo, t he ALJ found t hat Brown’ s lone severe impairment is a back disorder. At st ep t hree, he found t hat she does not have impairment or combinat ion of impairment s list ed in, or medically equal t o, t he governing regulat ions. He t hen assessed her residual funct ional capacit y and found t he following: Aft er careful considerat ion of t he ent ire record, t he undersigned finds t hat [Brown] has t he residual f unct ional capacit y t o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), reduced by t he requirement t hat post ural act ivit y should be performed on [an] occasional basis only (t hat is: for no more t han 1/ 3 of t he day, cumulat ive not consecut ive). -2- See Transcript at 13. At st ep four, t he ALJ found t hat Brown is capable of performing her past relevant work, a finding based in part upon t he t est imony of a vocat ional expert . Alt hough t hat finding could have concluded t he ALJ’ s analysis, he proceeded t o st ep five where he found t he following: “ [e]ven if [Brown] is unable t o perform any past relevant work, considering [her] age, educat ion, work experience, and residual funct ional capacit y, t here are j obs t hat exist in significant numbers in t he nat ional economy t hat [she] can perform.” See Transcript at 15. Given t he foregoing findings, t he ALJ concluded t hat Brown is not disabled wit hin t he meaning of t he Act . BROWN’ S ASSERTIONS OF ERROR. Are t he ALJ’ s findings support ed by subst ant ial evidence on t he record as a whole? Brown t hinks not and advances four reasons why: (1) her subj ect ive complaint s were not properly evaluat ed, (2) her residual funct ional capacit y was not properly assessed, (3) t he hypot het ical quest ion at st ep four of t he sequent ial evaluat ion process was built upon a deficient assessment of Brown’ s residual funct ional capacit y and t he required funct ional analysis was absent , and (4) “ t he ALJ erred by basing his st ep [five] det erminat ion upon t he ‘ framework’ of t he grids and failing t o receive vocat ional expert t est imony about t he erosion of t he occupat ional base and t he availabilit y of ot her work when [Brown] has significant ‘ nonexert ional’ impairment s,” see Document 13 at 23. For t he reasons t hat follow, t he Court finds t hat t he ALJ erred at st ep five but is nevert heless sat isfied t hat his findings up t hrough st ep four are support ed by subst ant ial evidence on t he record as a whole. -3- STEP FIVE ANALYSIS. Brown maint ains t hat t he ALJ erred at st ep five of t he sequent ial evaluat ion process. She maint ains t hat he erred by “ basing his st ep [five] det erminat ion upon t he ‘ framework’ of t he [Medical-Vocat ional Guidelines or “ Guidelines” ] and failing t o receive vocat ional expert t est imony about t he erosion of t he occupat ional base and t he availabilit y of ot her work when [Brown] has significant ‘ nonexert ional’ impairment s.” See Document 13 at 23. The ALJ may not rely upon t he Guidelines if t he claimant suffers from nonexert ional impairment s t hat “ diminish or significant ly limit [her] residual funct ional capacit y t o perform t he full range of Guideline-list ed act ivit ies.” See Ellis v. Barnhart , 392 F.3d 988, 996 (8t h Cir. 2005) [int ernal quot at ion omit t ed]. Inst ead, t he ALJ must obt ain vocat ional expert t est imony. If, however, t he claimant ’ s non-exert ional impairment s do not diminish or significant ly limit her residual funct ional capacit y t o perform t he full range of Guideline-list ed act ivit ies, use of t he Guidelines is not prohibit ed. The ALJ assessed Brown’ s residual funct ional capacit y and found t hat she can perform light work. He did not find t hat she can perform t he full range of light work, t hough. He inst ead found t hat her abilit y t o perform light work is reduced by t he requirement t hat she perform post ural act ivit ies on an occasional basis only. He appears t o have nevert heless applied t he Guidelines at st ep five because t he post ural limit at ion has lit t le or no effect on her abilit y t o perform light work. See Transcript at 16. -4- The ALJ’ s use of t he Guidelines at st ep five of t he sequent ial evaluat ion process was in error because he failed t o explain what appear t o be inconsist ent findings. On one hand, he found t hat Brown’ s abilit y t o perform light work was reduced by t he requirement t hat she perform post ural act ivit ies on an occasional basis only, a limit at ion t hat can be non-exert ional. See 20 C.F.R. 404.1569a(c). He specifically ident ified “ occasional” t o mean “ for no more t han 1/ 3 of t he day, cumulat ive not consecut ive.” See Transcript at 13. On t he ot her hand, t hough, he found t hat t he post ural limit at ion has lit t le or no effect on her abilit y t o perform light work. Alt hough a plausible explanat ion for t he apparent ly inconsist ent findings may exist , t he ALJ did not offer it . The aforement ioned error does not , however, conclude t he review funct ion of t he Court . The ALJ made findings up t hrough st ep four of t he sequent ial evaluat ion process and found at st ep four t hat Brown can perform her past relevant work. He only proceeded t o st ep five in order t o make an alt ernat e finding. Having reviewed t he record, t he Court is sat isfied t hat his findings up t hrough st ep four are support ed by subst ant ial evidence on t he record as a whole. BROWN’ S SUBJECTIVE COMPLAINTS. Brown maint ains t hat her subj ect complaint s were not properly evaluat ed. She maint ains t hat obj ect ive evidence support ing her claim of severe pain was ignored, her daily act ivit ies were mist akenly found t o be inconsist ent wit h severe pain, and t oo much emphasis was placed on her gait when she appeared at t he administ rat ive hearing. -5- In Pearsall v. Massanari, 274 F.3d 1211, 1217-1218 (8t h Cir. 2001), t he Court of Appeals offered t he following guidance in evaluat ing a claimant ’ s subj ect ive complaint s: ... t he ALJ must consider, in addit ion t o obj ect ive medical evidence, any evidence relat ing t o: a claimant 's daily act ivit ies; [t he] durat ion, frequency and int ensit y of pain; [t he] dosage and effect iveness of medicat ion; precipit at ing and aggravat ing fact ors; and funct ional rest rict ions. See Polaski v. Heckler, 739 F.2d 1320 (8t h Cir.1984). Subj ect ive complaint s may be discount ed if t here are inconsist encies in t he evidence as a whole. Id. at 1322. ... The credibilit y of a claimant 's subj ect ive t est imony is primarily for t he ALJ t o decide, not t he court s. ... The record reflect s t hat t he ALJ cit ed Social Securit y Rulings 96-7p and applied t hose fact ors t o t he evidence, bot h medical and non-medical. He found t hat alt hough Brown experiences some pain, her st at ement s regarding t he int ensit y, persist ence, and limit ing effect s of her pain were not credible. He so found for several reasons, including a lack of medical evidence, t he ext ent of her daily act ivit ies, her work act ivit y aft er t he alleged onset dat e, and her exaggerat ed gait at t he administ rat ive hearing. The ALJ’ s findings as t o Brown’ s subj ect ive complaint s are support ed by subst ant ial evidence on t he record as a whole. The record reflect s t hat he cit ed t he governing legal aut horit y, i.e., Social Securit y Ruling 96-7p. See Transcript at 13. He reviewed t he medical evidence, see Transcript at 10-12, and found t hat it was insufficient t o support her claim of severe pain. In t hat regard, he made t wo significant findings; t hey were as follows: -6- In t his case, a careful review of t he record does not document sufficient obj ect ive medical evidence t o subst ant iat e t he severit y of pain and degree of funct ional limit at ions alleged by [her]. ... The undersigned considered but grant ed lit t le probat ive weight t o [Brown’ s] t est imony because alt hough her hist ory of back pain is well document ed, t he medical evidence did not support [her] ult imat e allegat ion of disabilit y. This conclusion is consist ent wit h Dr. Campbell’ s remarks t hat he could not find a “ corresponding anat omic cause” for [Brown’ s] pain in t he MRI of t he lumbar spine, which was essent ially normal ot her t han showing facet degenerat ion ... See Transcript at 14. The ALJ also considered t he non-medical evidence, see Transcript at 13-15, evidence he found t o not support her claim of severe pain. Wit h regard t o Brown’ s assert ion of error t hat obj ect ive evidence support ing her claim of severe pain was ignored, it is t rue t hat t here is some medical evidence support ing her claim, evidence t he ALJ not ed. 1 Her assert ion, t hough, is wit hout merit . The ALJ did not find t hat t here was no obj ect ive medical evidence support ing her claim of severe pain; inst ead, he found t hat t he obj ect ive medical evidence support ing her claim was insufficient . He could and did so find as t he evidence she cit es is minimal. 1 The record cont ains evidence of a “ slight post erior lat eral bulge of t he disc on t he right side which does not significant ly impinge on t he canal” and a “ slight left post erior lat eral disc bulge which mildly impinges on t he nerve root .” See Transcript at 184. The record cont ains evidence of Brown’ s “ rest rict ed” range of mot ion and t enderness and spasms in her back. See Transcript at 432. The record also cont ains evidence of “ very minimal dext roscoliosis of t he lumbar spine” and “ [p]ost erior facet j oint effusions.” See Transcript at 605. The ALJ specifically not ed t hose findings. See Transcript at 11-12. -7- Wit h regard t o Brown’ s assert ion of error t hat her daily act ivit ies were mist akenly found t o be inconsist ent wit h severe pain, subst ant ial evidence on t he record as a whole support s t he ALJ’ s findings as t o t he ext ent of her daily act ivit ies. See Transcript at 107116. Subst ant ial evidence on t he record as a whole also support s his finding t hat she had subst ant ial earnings aft er t he alleged onset dat e. See Transcript at 90-92. 2 Are t hose act ivit ies consist ent wit h disabling pain? She has not shown any reason why t he Court should dist urb t he finding t hat her daily act ivit ies are inconsist ent wit h disabling pain. Wit h regard t o Brown’ s assert ion of error t hat t oo much emphasis was placed on her gait when she appeared at t he administ rat ive hearing, t he ALJ indeed acknowledged t hat one fact or he considered in discount ing her credibilit y was her “ exaggerat ed ant algic gait at t he t ime of t he hearing.” See Transcript at 14. Did he err in doing so? The Court t hinks not for at least t wo reasons. First , t he ALJ may properly consider his personal observat ions of a claimant during t he administ rat ive hearing. See Lamp v. Ast rue, 531 F.3d 629 (8t h Cir. 2008). Second, his observat ions of Brown were not t he only fact or he considered in adj udging her credibilit y; inst ead, his observat ions of her were “ only one among many” fact ors he considered in discount ing her subj ect ive complaint s. See Transcript at 14. 2 Wit h regard t o t he subst ant ial earnings Brown had aft er t he alleged onset dat e, she maint ains t hat “ onset dat es are oft en picked by t he SSA caseworker who does t he init ial disabilit y int erview and [Brown] should not be penalized for a t echnicalit y t hat most claimant s do not fully comprehend.” See Document 13 at 17. The Commissioner’ s response is persuasive and is adopt ed by t he Court . See Document 14 at 7. -8- BROWN’ S RESIDUAL FUNCTIONAL CAPACITY. Brown maint ains t hat her residual funct ional capacit y was not properly assessed. In support of her assert ion of error, she specifically maint ains t he following: (1) “ nowhere in t he ALJ’ s decision does he address whet her [she] has t he abilit y t o work on a ‘ regular and cont inuing basis’ for 8 hours a day, 5 days a week when she suffers from chronic pain which requires t hat she t ake a 2.5 hour nap daily and she rest [] while performing chores,” see Document 13 at 20; (2) t he det erminat ion of her residual funct ional capacit y is flawed because a funct ion-byfunct ion assessment of her abilit ies was not performed; (3) t he det erminat ion is also flawed because all of her impairment s were not considered; and (4) t he ALJ failed t o consider t hat “ a side effect of Hydrocodone is drowsiness,” see Document 13 at 21. A claimant ’ s residual funct ional capacit y is simply an assessment of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record and must be support ed by “ medical evidence t hat addresses [t he claimant ’ s] abilit y t o funct ion in t he workplace.” See Id. at 539. The ALJ found t hat Brown is capable of performing light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). He found t hat her abilit y t o perform light work is reduced, t hough, by t he requirement t hat post ural act ivit y be performed on an occasional basis only. He support ed his findings, in part , by adopt ing t he findings made by Dr. Jim Takach (“ Takach” ), a medical consult ant . -9- The ALJ’ s findings as t o Brown’ s residual funct ional capacit y are support ed by subst ant ial evidence on t he record as a whole. He considered bot h t he medical evidence, including t he findings and opinions of her physicians and t he st at e agency physicians, and t he non-medical evidence, including her subj ect ive allegat ions of severe pain. Wit h regard t o Brown’ s assert ion of error t hat “ t he ALJ’ s decision does not address whet her she has t he abilit y t o work on a ‘ regular and cont inuing basis’ for 8 hours a day, 5 days a week when she suffers from chronic pain which requires t hat she t ake a 2.5 hour nap daily and she rest [] while performing chores,” see Document 13 at 20, t he Commissioner’ s response is persuasive and is adopt ed by t he Court . It is as follows: ... [A] residual funct ional capacit y finding defines “ t he individual’ s maximum remaining abilit y t o do sust ained work act ivit ies in an ordinary work set t ing on a regular and cont inuing basis.” SSR 96-8p. A “ regular and cont inuing basis” means 8 hours a day, 5 days a week, or an equivalent work schedule. ... Accordingly, when t he ALJ made his residual funct ional capacit y finding, he expressly defined what [Brown] could perform on a regular and cont inuing, or full-t ime basis. ... See Document 14 at 9 [emphasis in original]. Wit h regard t o Brown’ s assert ion of error t hat a funct ion-by-funct ion assessment of her abilit ies was not performed, t he Court is sat isfied t hat t he ALJ’ s assessment , while not comprehensive, was adequat e. He considered t he relevant evidence and addressed how it support s t he assessment , making specific reference t o Takach’ s findings. See -10- Transcript at 15, 446-453. 3 His findings are consist ent wit h t he findings made by Dr. St eve Owens (“ Owens” ), save Owen’ s findings regarding Brown’ s post ural limit at ions and t he amount of weight she can lift / carry. See Transcript at 423-430. 4 Given t he findings made by Takach and ot her evidence in t he record, it was not necessary for t he ALJ t o have obt ained a consult at ive examinat ion as she maint ains. Wit h regard t o Brown’ s assert ion of error t hat all of her impairment s were not considered, including her obesit y, swelling, depression, and a “ piriformis syndrome,” it is t rue t hat t here is some ment ion of t hose impairment s in t he record. See Transcript at 628 (excessive weight ), 628 (swelling), 306-307, 621 (depression), and 558 (piriformis syndrome). The ALJ was aware of his obligat ion t o consider all of her impairment s in assessing her residual funct ional capacit y, including t he impairment s t hat are not severe, see Transcript at 9, and t he Court is sat isfied t hat he fulfilled t hat obligat ion. Alt hough he admit t edly did not include Brown’ s excessive weight , swelling, depression, and “ piriformis syndrome” in his assessment , she has failed t o offer any evidence t hat t he impairment s impose any limit at ion on her funct ional capacit ies. For inst ance, wit h 3 Brown maint ains t hat t he ALJ relied exclusively upon “ t he opinions of non-examining case workers, who are not physicians [foot not e omit t ed], t hat [Brown can] perform light work.” See Document 13 at 20. It is clear, however, t hat Takach is a licensed physician. See Transcript at 28-29. 4 Takach found t hat Brown has post ural limit at ions and can occasionally lift / carry t went y pounds and frequent ly lift / carry t en pounds. See Document at 447-448. Owens found t hat Brown has no post ural limit at ions and can occasionally lift / carry fift y pounds and frequent ly lift / carry t went y-five pounds. See Transcript at 424-425. The ALJ could and did give great er weight t o Takach’ s findings. -11- respect t o her excessive weight , Dr. John Campbell simply not ed t hat she was “ somewhat overweight ” and “ a lit t le bit of weight loss might be beneficial ...” See Transcript at 628-629. He did not find t hat her excessive weight causes her any limit at ion. Wit h respect t o Brown’ s depression, it appears t hat she was prescribed ant i-depressant and ant i-anxiet y medicat ion but t here is no indicat ion t hat her depression causes her any limit at ion and is anyt hing more t han sit uat ional in nat ure. 5 It is also wort h not ing t hat she did not allege depression in her applicat ions for benefit s, which is not an insignificant fact . See Dunahoo v. Apfel, 241 F.3d 1033 (8t h Cir. 2001). Wit h regard t o Brown’ s assert ion of error t hat t he ALJ failed t o consider “ a side effect of Hydrocodone is drowsiness,” see Document 13 at 21, t he record est ablishes ot herwise. He considered t he drowsiness caused by Hydrocodone and found t hat “ she t akes [t wo] Aleve inst ead [of Hydrocodone for pain].” See Transcript at 13. THE HYPOTHETICAL QUESTION. Brown last maint ains t hat t he ALJ erred in t he manner in which he craft ed his hypot het ical quest ion at st ep four of t he sequent ial evaluat ion process. She maint ains t hat t he quest ion was built upon a deficient assessment of her residual funct ional capacit y and t he required funct ional assessment of her past work was absent . “ ‘ [T]est imony from a vocat ional expert is subst ant ial evidence [on t he record as 5 The not es of Dr. Vonda Houchin indicat e t hat Brown was depressed because she did not want t o be a burden t o her family. See Transcript at 621. -12- a whole] only when t he t est imony is based on a correct ly phrased hypot het ical quest ion t hat capt ures t he concret e consequences of a claimant ’ s deficiencies.’ ” See McKinley v. Apfel, 228 F.3d 860, 865 (8t h Cir. 2000) [quot ing Taylor v. Chat er, 118 F.3d 1274, 1278 (8t h Cir. 1997)]. The quest ion need not cont ain every impairment alleged by t he claimant , see Haggard v. Apfel, 175 F.3d 591 (8t h Cir. 1999), and need not cont ain t he impairment s t hat impose no rest rict ions on his “ funct ional capabilit ies,” see Haynes v. Shalala, 26 F.3d 812, 815 (8t h Cir. 1994) The record reflect s t hat t he ALJ posed a hypot het ical quest ion t o t he vocat ional expert at st ep four of t he sequent ial evaluat ion process. In craft ing t he quest ion, t he ALJ incorporat ed by reference t he findings as t o Brown’ s residual funct ional capacit y made by Takach. See Transcript at 22. The vocat ional expert t est ified t hat given Brown’ s residual funct ional capacit y, she is capable of performing her past relevant work, which t he vocat ional expert had previously t est ified involved light work. See Transcript 20-21. The Court finds not hing improper about t he hypot het ical quest ion. The ALJ could and did adopt t he assessment of Brown’ s residual funct ional capacit y made by Takach, and t he ALJ incorporat ed by reference t hat assessment int o t he quest ion. Alt hough t he specifics of her past relevant work were not precisely ident ified, it is sufficient for t he vocat ional expert t o have t est ified t hat her past relevant work involved light work. CONCLUSION. The Court finds t hat alt hough t he ALJ’ s use of t he Guidelines at -13- st ep five of t he sequent ial evaluat ion process was in error, t here is subst ant ial evidence on t he record as a whole t o support his findings at st eps one t hrough four. Having found at st ep four t hat she can ret urn t o her past relevant work, his error at st ep five is harmless. Accordingly, Brown’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 28 day of December, 2010. UNITED STATES MAGISTRATE JUDGE -14-
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