Everett v. Social Security Administration, No. 4:2009cv00822 - Document 16 (E.D. Ark. 2010)
Court Description: MEMORANDUM OPINION AND ORDER dismissing pltf's complt. All requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge H. David Young on 12/1/2010. (lej)
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Everett v. Social Security Administration Doc. 16 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION PAMELA MARIE EVERETT PLAINTIFF v. NO. 4:09CV00822 HDY MICHAEL J. ASTRUE, Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER BACKGROUND. Plaint iff Pamela Marie Everet t (“ Everet t ” ) began her at t empt t o obt ain benefit s by filing an applicat ion for disabilit y insurance benefit s pursuant t o t he provisions of t he Social Securit y Act (“ Act ” ). Her applicat ion was denied init ially and upon reconsiderat ion. She next request ed, and received, a de novo hearing before an Administ rat ive Law Judge (“ ALJ” ), who event ually issued a decision adverse t o Everet t . She t hen appealed t he ALJ’ s decision. The Appeals Council affirmed t he ALJ’ s decision, which became t he final decision of t he Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ). Everet t t hereaft er commenced t his proceeding by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , she 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 made findings pursuant t o t he five st ep sequent ial evaluat ion process. At st ep one, t he ALJ found t hat Everet t did not engage in subst ant ial gainful act ivit y “ during t he period from her alleged onset dat e of May 13, 2006, t hrough her dat e last insured of March 30, 2007.” See Transcript at 13. 1 At st ep t wo, he found t hat she had t he following severe impairment s t hrough t he dat e last insured: chronic obst ruct ive pulmonary disease, obesit y, degenerat ive j oint disease, and art hrit is. At st ep t hree, he found t hat t hrough t he dat e last insured, she did not have an impairment or combinat ion of impairment s list ed in, or medically equal t o, t he governing regulat ions. The ALJ t hen found Everet t ’ s residual funct ional capacit y t o be as follows: 1 The Commissioner represent s t he following, which t he Court accept s as t rue: In her current applicat ion, [Everet t ] alleged disabilit y since May 13, 2006. ... However, [she] filed a prior Tit le II applicat ion on June 6, 2006, alleging t he same disabilit y onset dat e of May 13, 2006. ... On July 27, 2006, t he Social Securit y Administ rat ion denied [Everet t ’ s] prior applicat ion at t he init ial level, and [she] did not appeal t his det erminat ion. ... Thus, t he issue of [her] disabilit y has been adj udicat ed t hrough July 27, 2006, t he dat e t hat she was last denied benefit s. Because t he current ALJ did not reopen [Everet t ’ s] prior det erminat ion, t he doct rine of res j udicat a bars t his Court from considering [her] disabilit y for all t imes prior t o July 28, 2006. ... See Document 15 at 1, n.1. -2- Aft er careful considerat ion of t he ent ire record, t he undersigned finds t hat t hrough t he dat e last insured, [Everet t ] had t he residual funct ional capacit y t o perform sedent ary work as defined in 20 CFR 404.1567(a) wit h some addit ional limit at ions. Specifically, t he [ALJ] finds t hat [Everet t ] is capable of lift ing and carrying up t o 10 pounds occasionally and obj ect s such as files, docket s, and ledgers frequent ly, sit t ing for up t o a t ot al of 6 hours during an 8-hour workday, st anding and/ or walking for less t han 6 hours during an 8-hour workday, wit h only occasional st ooping, crawling, climbing, crouching, balancing, and kneeling and no exposure t o concent rat ed dust or fumes. See Transcript at 14. At st ep four, he found t hat t hrough t he dat e last insured, she was unable t o perform her past relevant work. At st ep five, t he ALJ found t hat t hrough t he dat e last insured, Everet t ’ s residual funct ional capacit y, age, educat ion, work experience, and t he t est imony of a vocat ional expert were such t hat t here were j obs in t he nat ional economy t hat Everet t could have performed. Accordingly, t he ALJ concluded t hat she was not disabled wit hin t he meaning of t he Act at any t ime bet ween May 13, 2006, and March 30, 2007. EVERETT’ S CREDIBILITY. Are t he ALJ’ s findings support ed by subst ant ial evidence on t he record as a whole? Everet t t hinks not . As her sole claim, she maint ains t hat her credibilit y was erroneously adj udged in t he following t hree respect s: (1) her explanat ion for her “ limit ed” medical hist ory was not considered, (2) no explanat ion was offered for how t he medical findings were inconsist ent wit h t he degree of disabling pain and sympt oms alleged by her, and (3) her t est imony and/ or represent at ions regarding her condit ion were mis-charact erized by t he ALJ. -3- In Pearsall v. Massanari, 274 F.3d 1211, 1217-1218 (8t h Cir. 2001), t he Court of Appeals st at ed t he following regarding t he proper evaluat ion of subj ect ive complaint s: ... Before det ermining a claimant ’ s [residual funct ional capacit y], t he ALJ first must evaluat e t he claimant ’ s credibilit y. In evaluat ing 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 Commissioner need not explicit ly discuss each Polaski v. Heckler fact or but “ only need acknowledge and consider t hose fact ors before discount ing a claimant 's subj ect ive complaint s.” See Eichelberger v. Barnhart , 390 F.3d 584, 590 (8t h Cir. 2004). Before det ermining Everet t ’ s residual funct ional capacit y, t he ALJ evaluat ed Everet t ’ s credibilit y. The ALJ did so in t he following manner: [Everet t ’ s] medical hist ory is not necessarily consist ent wit h her allegat ions of disabilit y. In May 2006, [she] was examined by Dr. Mark Malloy when she arrived at t he Saline Memorial Hospit al emergency room complaining of short ness of breat h. Dr. Malloy diagnosed [her] wit h chronic obst ruct ive pulmonary disease and not ed t hat [she] had an acut e exacerbat ion of t he condit ion leading t o her sympt oms. A chest x-ray ordered by Dr. Malloy was negat ive. He also wrot e t hat [Everet t ] was a smoker and was also obese. Dr. Malloy not ed t hat [her] condit ion improved very quickly wit h t reat ment and upon discharge she had no wheezing, very lit t le coughing and no short ness of breat h. ... -4- In Oct ober 2006, Dr. Brian Suddert h wrot e t hat ... Everet t had nonspecific sympt oms of pain t hat radiat ed int o her legs. He not ed t hat [she] st at ed t hat she had difficult y get t ing up and down and could not sit for long periods of t ime. In January 2007, Dr. Suddert h opined t hat [she] had chronic lumbar pain and pain associat ed wit h an old right knee inj ury. ... A physician at t he Christ ian Communit y Care Clinic diagnosed ... Everet t wit h degenerat ive j oint disease in Sept ember 2006. ... In June 2007, Dr. A. Jack Somers, Jr., a cert ified medical examiner, evaluat ed [Everet t ]. Dr. Somers wrot e t hat [she] was unable t o squat and rise and t hat an x-ray of [her] right and left knees showed moderat e degenerat ive changes of t he pat ella on bot h knees, but t hat t he j oint spaces were well maint ained. A spiromet ry report showed t hat [Everet t ] had moderat e rest rict ion wit h approximat ely 70% predicat ed pulmonary funct ion. Dr. Somers diagnosed [her] wit h chronic obst ruct ive pulmonary disease, degenerat ive j oint disease, and lower back pain. ... The [ALJ] acknowledges t hat [Everet t ] has alleged severe disabling pain and sympt oms. These allegat ions are hereby considered pursuant t o t he guidelines in ... Polaski v. Heckler, 751 F.2d 943 (8t h Cir. 1984) ... [Everet t ] has alleged t hat she suffers from severe disabling pain and sympt oms. It must first be not ed t hat t he medical findings t hat are present are not consist ent wit h t he degree of disabling pain and sympt oms alleged by [Everet t ]. Cert ainly, her allegat ions cannot be disregarded solely on t his basis, but t his is a fact or which must be considered. The absence of obj ect ive medical findings t o support allegat ions of disabling pain is one fact or which can be used t o evaluat e credibilit y. The fact t hat she may have some level of disabilit y due t o knee problems, lower back pain, and respirat ory difficult ies was given due considerat ion in reaching t he finding t hat she would not be able t o perform her past relevant work, but t hat she would be able t o perform sedent ary j obs wit h t he addit ional limit at ions ment ioned previously. -5- Wit h regard t o aggravat ing fact ors and funct ional limit at ions, [Everet t ] alleges t hat she is almost wholly incapacit at ed by her condit ion. [She] t est ified t hat she becomes short of breat h wit h any physical exert ion and t hat she has severe pain in her knees and lower back. She st at ed t hat she can only st and for approximat ely 20 minut es and has difficult y walking even short dist ances. [Everet t ] also t est ified t hat she has difficult y sit t ing for ext ended periods of t ime due t o back pain. However, t he [ALJ] not es t hat [Everet t ] st at ed t hat her respirat ory condit ion has improved since being placed on medicat ion. She also indicat ed in her adult funct ion report t hat she was able t o do household chores such as cooking and washing dishes wit h only short breaks, drive a car, go out side, shop for groceries, and spend t ime wit h ot hers. ... Overall, [her] daily act ivit ies indicat e t hat she has t he abilit y t o perform a sedent ary range of work wit h some addit ional limit at ions. Not ably, t here is no probat ive, obj ect ive medical evidence t o show t hat [Everet t ] has ever been advised by any t reat ing or examining physician t hat her sympt oms and/ or impairment s have ever been of such severit y as t o complet ely preclude involvement in subst ant ial gainful act ivit y at every exert ional level. There is also no obj ect ive medical evidence t o show t hat [she] has ever been medically advised by t reat ing physicians t o permanent ly limit act ivit ies secondary t o any medically det erminable impairment or combinat ion of impairment s. [Everet t ] t est ified t hat she is current ly t aking t he following medicat ions: Albut erol and Spiriva for chronic obst ruct ive pulmonary disease, naproxen for art hrit is, blood pressure medicat ion, and hormone medicat ion. It does not appear t hat [she] is current ly t aking any prescript ion narcot ic pain medicat ion or t hat she has had t o rely on st rong narcot ic pain medicat ion for any ext ended periods of t ime. This fact undermines [her] credibilit y as t o t he severit y of pain sympt oms. Furt hermore, t he record cont ains no evidence t hat significant side-effect s from medicat ion are being experienced by [her] at t his t ime. See Transcript at 14-16. On t he basis of t he foregoing, t he ALJ found t hat Everet t ’ s complaint s were not fully credible. -6- Everet t first maint ains t hat her credibilit y was erroneously adj udged because her explanat ion for her medical hist ory was not considered. She acknowledges t hat her medical hist ory is “ limit ed” but t he ALJ did not consider t he reason why, i.e., she has “ t rouble going t o t he doct or regularly because she has neit her money nor healt h insurance” and only receives t reat ment at a charit able clinic where she is obligat ed t o pay a small charge. See Document 14 at 6. 2 There are at least t wo problems wit h Everet t ’ s assert ion. First , t he ALJ did not discount her credibilit y because of her “ limit ed” medical hist ory. He simply not ed t hat her medical hist ory was “ not necessarily consist ent wit h her allegat ions of disabilit y.” See Transcript at 14. Thus, it was not t he scope of her medical hist ory t hat caused him t o discount her credibilit y but t he lack of consist ency bet ween her medical hist ory and her allegat ions. Second, it appears t hat somet hing more t han Everet t ’ s bare st at ement of financial hardship is required in order for t he Commissioner t o t ake t he hardship int o account . See Carrigan v. Ast rue, 2009 WL 734116 at 6 (W.D.Ark. 2009) (Bryant , J.). 3 2 It should be not ed t hat “ if t he claimant is unable t o follow a prescribed regimen of medicat ion and t herapy t o combat her disabilit ies because of financial hardship, t hat hardship may be t aken int o considerat ion when det ermining whet her t o award benefit s. See Murphy v. Sullivan, 953 F.2d 383, 386 (8t h Cir. 1992). 3 “ [T] claimant 's bare st at ement t hat ... she is unable t o afford medical t reat ment is not sufficient t o est ablish t hat inabilit y. ... Inst ead, t he claimant must make some showing t hat est ablishes ... she was unable t o afford medical t reat ment . ... For inst ance, t he claimant must show t hat ... she qualifies for a Medicaid card, sought t o obt ain low-cost medical t reat ment , or was denied medical care because of ... her financial condit ion. ...” See Carrigan v. Ast rue, 2009 WL 734116 at 6. -7- Everet t next maint ains t hat her credibilit y was erroneously adj udged because no explanat ion was offered for how t he medical findings were inconsist ent wit h t he degree of disabling pain and sympt oms alleged by her. Specifically, she maint ains t hat no explanat ion was offered for how t he medical evidence relat ing t o her knees and lungs was inconsist ent wit h her subj ect ive complaint s of knee pain and short ness of breat h. The Commissioner could and did find t hat t he medical findings are inconsist ent wit h t he degree of disabling pain and sympt oms alleged by Everet t because t hey are, in fact , inconsist ent . Wit h specific regard t o t he condit ion of Everet t ’ s knees, t he Commissioner not ed t he Sept ember of 2006 findings of a physician at t he Christ ian Communit y Care Clinic. The physician not ed t hat Everet t ’ s complaint of knee pain was likely due t o degenerat ive j oint disease. See Transcript at 186. Ot herwise, t he physician’ s not es reflect not hing remarkable about t he condit ion of Everet t ’ s knees. The Commissioner not ed t he January of 2007 findings of Dr. Brian Suddert h, who found t hat Everet t experienced some right knee pain due, in large part , t o an old right knee inj ury. See Transcript at 180. Ot herwise, his not es reflect not hing remarkable about t he condit ion of her knees. The Commissioner also not ed t he June of 2007 findings of Dr. A. Jack Somers, Jr. (“ Somers” ), who found t hat an x-ray of Everet t ’ s knees revealed moderat ely severe degenerat ive changes t o t he pat ella in bot h knees but t he j oint spaces were well maint ained. See Transcript 194. Ot herwise, his not es also reflect not hing remarkable about t he condit ion of her knees. -8- Wit h specific regard t o t he condit ion of Everet t ’ s lungs, t he Commissioner not ed t he May of 2006 findings of Dr. Mark Malloy. Everet t present ed t o t he Saline Count y Memorial Hospit al complaining of short ness of breat h. See Transcript at 160, 164. The t reat ment not es reflect t hat she suffers from chronic obst ruct ive pulmonary disease, bronchit is, and “ smoking abuse.” See Transcript at 157. The not es addit ionally reflect t he following: (A) Everet t smokes t hree packs of cigaret t es a day and is obese; (B) an xray of her chest was “ essent ially normal,” see Transcript at 158, 171; and (C) her sympt oms cleared “ very quickly,” and by t he t ime of her discharge on May 22, 2006, “ she had no wheezing, very lit t le cough and no short ness of breat h,” see Transcript at 157. The Commissioner also not ed t he June of 2007 findings of Somers, who found no evidence t hat Everet t suffered from chest pain, t hat she was not t hen a smoker, and t hat a spiromet ry report revealed only “ moderat e rest rict ion.” See Transcript at 196. 4 The foregoing findings paint a pict ure of a claimant about whom t he medical evidence is unremarkable. Everet t undoubt edly suffers from, int er alia, pain in her knees and chronic obst ruct ive pulmonary disease, but t he findings as t o t hose impairment s are not consist ent wit h t he severe pain she claims t o be experiencing. The Commissioner could and did t herefore find as he did wit h regard t o t he inconsist encies bet ween her impairment s and t he severit y of t he pain she claims t o be experiencing. 4 The Court underst ands a “ spiromet ry report ” t o measure lung capacit y or t he flow of air in and out of a person’ s lungs. -9- Everet t last maint ains t hat her credibilit y was erroneously adj udged because her t est imony and/ or represent at ions regarding her condit ion were mis-charact erized by t he ALJ. In support of her assert ion, Everet t cit es t he Court t o what she purport s t o be numerous mis-charact erizat ions of her t est imony and/ or represent at ions by t he ALJ. See Document 14 at 8-12. 5 Everet t ’ s assert ion cent ers primarily upon t he ALJ’ s alleged mis-charact erizat ion of an adult funct ion report , a disabilit y report , and her represent at ions as t o narcot ic pain medicat ion. Wit h regard t o t he adult funct ion report , t he ALJ charact erized it as follows: “ [Everet t ] ... indicat ed in her adult funct ion report t hat she was able t o do household chores such as cooking and washing dishes wit h only short breaks, drive a car, go out side, shop for groceries, and spend t ime wit h ot hers.” See Transcript at 15. Comparing t he ALJ’ s charact erizat ion of t he adult funct ion report wit h t he represent at ions cont ained in t he report , see Transcript at 116-123, t he Court is sat isfied t hat his charact erizat ion, alt hough not comprehensive, is adequat e. Everet t admit s being able t o perform t he act ivit ies, and t he ALJ could and did t herefore find t hat she can. Despit e her assert ion t hat she cannot perform t hem well, he does not appear t o have offered a finding as t o t he ext ent t o which she can perform t hem. 5 The ALJ has an obligat ion t o fully and fairly develop t he record. See Bat t les v. Shalala, 36 F.3d 43 (8t h Cir. 1994). The obligat ion undoubt edly includes t he responsibilit y of fairly charact erizing t he claimant ’ s t est imony and/ or represent at ions. There is no bright line t est for det ermining whet her t he ALJ fully and fairly developed t he record; t hat det erminat ion is made on a case-by-case basis. See Id. -10- Wit h regard t o t he disabilit y report , Everet t represent ed in t he report t hat her respirat ory condit ion had worsened. See Transcript at 143. The ALJ inst ead relied upon her t est imony during t he hearing t hat her condit ion had improved since being placed on medicat ion. See Transcript at 15, 54. Taking int o account t he inconsist encies in t he record regarding t he changes in her respirat ory condit ion, inconsist encies which t he Commissioner not ed in his brief, t he Court is sat isfied t hat t he ALJ’ s reconciliat ion of t he disabilit y report and her t est imony as t o her condit ion is adequat e. 6 Alt hough her condit ion had undoubt edly worsened by t he t ime she complet ed t he disabilit y report , t he ALJ could and did find t hat it subsequent ly improved once she began t aking mediat ion. Wit h regard t o Everet t ’ s represent at ions as t o narcot ic pain medicat ion, t he ALJ found t hat she was not “ current ly” t aking any such medicat ion and had not had t o rely upon such medicat ion for “ any ext ended periods of t ime.” See Transcript at 16. The Court is sat isfied t hat his findings are consist ent wit h t he record. Alt hough she had t aken narcot ic pain medicat ion in t he past , see Transcript at 115, t here is no indicat ion t hat she did so for any ext ended periods of t ime or was doing so at t he t ime of t he hearing. Alt hough she has a plausible explanat ion for why, i.e., a lack of funds, t he explanat ion does not negat e t he finding t hat she was not t aking such pain medicat ion. 6 “ It is proper for t he ALJ t o discount a claimant ’ s subj ect ive complaint s when t he evidence as a whole demonst rat es inconsist encies. Burns v. Sullivan, 888 F.2d 1218, 1220 (8t h Cir. 1989).” See Document 15 at 11. -11- For t he foregoing reasons, t he Court finds no merit t o Everet t ’ s assert ions. Not wit hst anding t hat finding, t hough, t he Court has reviewed t he ALJ’ s t reat ment of her credibilit y, and specifically her subj ect ive complaint s. The ALJ’ s findings as t o Everet t ’ s credibilit y are support ed by subst ant ial evidence on t he record as a whole. The ALJ considered t he obj ect ive medical evidence, see Transcript at 14-15; cit ed t he governing regulat ions and Polaski v. Heckler, 751 F.2d 943 (8t h Cir.1984), see Transcript at 15; and engaged in a brief discussion of t he evidence t ouching on t he Polaski v. Heckler fact ors, see Transcript at 15-16. Wit h specific regard t o Everet t ’ s daily act ivit ies, which appear t o be t he focal point of her challenge t o t he ALJ’ s credibilit y findings, t he ALJ could and did find t hat her daily act ivit ies are not consist ent wit h t he severit y of pain she claims t o be experiencing. CONCLUSION. The Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Accordingly, Everet t ’ 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 1 day of December, 2010. UNITED STATES MAGISTRATE JUDGE -12-
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