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Tippitt v. Colvin

United States District Court, E.D. Arkansas

November 19, 2014

Tim L. Tippitt, Plaintiff.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant.


JEROME T. KEARNEY, Magistrate Judge.

Tim L. Tippitt seeks judicial review of the denial of his application for disability insurance benefits (DIB) and supplemental security income (SSI). Tippitt last worked in August 2010 as a machine operator.[1] Tippitt applied for DIB and SSI on October 27, 2010, with an alleged onset date of February 28, 2009.[2] Tippitt's date last insured is December 31, 2014.[3] Tippitt bases disability on back problems.[4]

The Commissioner's decision. The Commissioner's ALJ determined that Tippitt did not engage in substantial gainful activity during the period from the alleged onset date to the date last insured.[5] Tippitt has severe impairments - degenerative disc disease, depression and anxiety.[6] None of Tippitt's severe impairments meet the Listings, and Tippitt can perform sedentary work except he can only occasionally bend, stoop, kneel and crawl; and is limited to simple, routine tasks with supervision that is simple, direct and concrete.[7] The ALJ held that Tippitt cannot perform any past relevant work, [8] but can perform the position of security systems monitor, a position identified by the vocational expert (VE) as available in the state and national economies.[9] Tippitt's application was denied.[10]

After the Commissioner's Appeals Council denied a request for review, the ALJ's decision became a final decision for judicial review.[11] Tippitt filed this case to challenge the decision. In reviewing the decision, the Court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[12]

Tippitt's allegations. Tippitt maintains that the RFC is not supported by substantial evidence because (1) the ALJ erred in the credibility determination; and (2) the ALJ did not adequately take into account Tippitt's mental limitations. These arguments are not persuasive. The ALJ's decision is supported by substantial evidence and no legal error occurred.

Substantial evidence is "less than a preponderance but... enough that a reasonable mind would find it adequate to support the conclusion."[13] For substantial evidence to exist in this case, a reasonable mind must accept the evidence as adequate to support the determination that Tippitt is not disabled.[14]

Credibility. Tippitt maintains that the ALJ's RFC determination is not supported by substantial evidence because of errors in the credibility determination, specifically regarding Tippitt's allegations of disabling back pain.[15]

In the decision, the ALJ determined that Tippitt was not credible to the extent that his allegations conflict with the assigned RFC. An ALJ must evaluate the claimant's credibility because subjective complaints play a role in determining the claimant's ability to work.[16] To evaluate Tippitt's credibility, the ALJ followed the required two-step process and considered the required factors, [17] so the dispositive question is whether substantial evidence supports the credibility evaluation. The ALJ's determination that Tippitt's subjective complaints of pain and limitations were not credible to the extent that they conflict with the assigned RFC is supported by substantial evidence.

Perhaps most importantly, the treatment notes indicate that Tippitt's back pain improved with treatment. In October 2009, following treatment with a pain medication, Tippitt indicated that the pain medication was controlling his pain effectively.[18] A subsequent note observed that Tippitt had improved with prescribed care.[19] And still another note stated that the pain medication gave Tippitt "complete improvement in his pain."[20] It was at this point that Tippitt requested to be released to active work duty.[21] Tippitt's treating physician released Tippitt to full work duty without restrictions and released him from active medical care.[22] The record contains seven subsequent treatment notes from Tippitt's treating physician spanning over two years.[23] The notes contain very little discussion of Tippitt's back pain. Indeed, two notes do not address back pain at all.[24] In a May 2012, treatment note Tippitt indicated that he was feeling well.[25] Further, Tippitt was in no apparent distress, ambulated to the examination room without assistance, and was able to sit comfortably on the examination table without difficulty or evidence of pain.[26]

The records further indicate that Tippitt received only conservative treatment for his back pain. He was prescribed a muscle relaxer, a pain medication and attended physical therapy.[27] At the time of the hearing, however, Tippitt was no longer even taking prescribed pain medication.[28], [29] Tippitt testified that he takes Tylenol and Aleve only every other day.[30] Such conservative treatment weighs against Tippitt's allegations of disabling back pain and supports the denial of disability.[31]

The clinical testing contained in the record provides additional support for the ALJ's credibility determination. While it is true that a March 2009, MRI showed disc bulges at L3-L4 and L4-L5 and a herniated disk at L5-S1, words like "mild, " "slight, " "small, " and "some" are used throughout the report.[32] Although the L4-L5 bulge was described as "prominent, " the report further concluded that "nerve roots do not appear extremely compressed."[33] Impingement of a nerve root, stenosis, and foraminal narrowing can cause bothersome symptoms, [34] but the mild descriptors do not suggest a cause for disabling pain. Indeed, the conservative treatment prescribed by Tippitt's treating physicians reflects that the radiological testing found no indications of severe injury to Tippitt's spine.

The Function Report also lends support to the credibility determination. In the Report, Tippitt indicated that he is able to prepare his own meals, wash dishes, mow the lawn with a self-propelled mower, and wash laundry once a week.[35] He stated that he does not need encouragement to do these things.[36] He is further able to drive a vehicle by himself, goes outside five or six times a day, and shops in stores weekly unaccompanied.[37] Tippitt also stated that he can walk half a mile before needing to rest.[38]

Physical assessments completed by agency physicians further support the credibility determination. In a January 2011, Physical Residual Functional Capacity Assessment, a state physician determined that Tippitt is capable of work at a light exertional level, noting that Tippitt received only conservative treatment for his back.[39] That conclusion was affirmed in a Case Analysis completed by a second state physician in June 2011.[40]

A reasonable mind would accept this evidence as adequate to support the ALJ's credibility determination. The credibility determination ...

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