United States District Court, W.D. Arkansas, Fayetteville Division
BARBARA S. DELAMATTER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
ERIN L. SETSER, Magistrate Judge.
Plaintiff, Barbara S. Delamatter, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for a period of disability and disability insurance benefits (DIB) under the provisions of Title II of the Social Security Act (Act). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed her current application for DIB on November 10, 2009, alleging an inability to work since January 2, 2007, due to severe back pain, pain and numbness in fingers and hand, severe depression, anxiety, fatigue, bone spurs, and suicidal ideation. (Tr. 162-163, 183, 190). Plaintiff's date last insured is March 31, 2010. (Tr. 190). An administrative hearing was held on March 9, 2012, at which Plaintiff appeared with counsel and testified. (Tr. 43-74).
By written decision dated May 3, 2012, the ALJ found that during the relevant time period (January 2, 2007 to March 31, 2010), Plaintiff had an impairment or combination of impairments that were severe - degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine, obesity, depression, and anxiety. (Tr. 23). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 24). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant requires a job that would allow a mixture of sitting and standing and would involve no more than simple tasks and simple instructions.
(Tr. 26). With the help of the vocational expert (VE), the ALJ determined that during the relevant time period, Plaintiff could not perform her past relevant work, but would be able to perform other jobs such as clerk and machine tender. (Tr. 36).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on June 26, 2013. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc. 1). Both parties have filed briefs and this case is before the undersigned for report and recommendation. (Docs. 11, 12).
The Court has reviewed the entire transcript. The complete set of facts and arguments are presented in the parties' briefs, and are repeated here only to the extent necessary.
II. Applicable Law:
This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Ramirez v. Barnard, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. The ALJ's decision must be affirmed if the record contains substantial evidence to support it. Edwards v. Barnard, 314 F.3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the Commissioner's decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the Court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record, it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of proving her disability by establishing a physical or mental disability that has lasted at least one year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§423(d)(3), 1382(3)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for at least twelve consecutive months.
The Commissioner's regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant had engaged in substantial gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing past relevant work; and (5) whether the claimant was able to perform other work in the national economy given her age, education, and experience. See 20 C.F.R. §416.920. Only if the final stage is reached does the fact finder consider the Plaintiff's age, education, and work experience in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
II. Evidence Presented:
Plaintiff was born in 1961 and received a GED. (Tr. 188, 190). The records reflect that Plaintiff was seeing her treating physician, Dr. David J. Tucker, in April of 2006, and was treated by him through February of 2012. (Tr. 416, 829). During the relevant time period, Plaintiff complained to Dr. Tucker of various maladies, such as cough, congestion, joint pains, chronic thoracic and lumbar strain, back pain, obesity, headaches, anxiety and depression, sacroiliac joint tenderness radiating down the buttocks into the upper thigh, carpal tunnel syndrome, attention deficit disorder, weakness, abdominal pain, and back muscle spasms, (Tr. 282, 293, 294, 307, 312, 321, 330, 337, 347, 370, 397, 401, 403, 406, 408, 410).
On April 26, 2007, Dr. Tucker wrote a letter "To Whom It May Concern, " stating that he had been seeing Plaintiff over the years for musculoskeletal thoracic and lumbar strain, as well as degenerative joint disease of the thoracic and lumbar spine. He noted that Plaintiff had been on medication including pain pills, anti-inflammatories, and muscle relaxers, and had received physical therapy as well. (Tr. 273). Dr. Tucker also stated that Plaintiff reported marked improvement upon the application of heat, especially when she had been in a hot tub in the past, therefore he recommended that if at all possible, she should spend time in a hot tub half hour at a time, at least five days weekly, for her back therapy. (Tr. 273).
On October 22, 2007, Dr. Tucker noted that Plaintiff's extremities did show considerable tenderness, although there was no swelling. (Tr. 401). On July 21, 2008, Dr. Tucker reported that there was marked tenderness of the right sacroiliac joint, and tenderness radiating down the buttocks in the upper thigh. (Tr. 293). He noted that Plaintiff did occasionally take 10 mg. of Prednisone, which had helped her in the past. (Tr. 293). As her Wellbutrin was not helping with her depression, Dr. Tucker gave her samples of Cymbalta. (Tr. 293). Dr. Tucker also injected Plaintiff's sacroiliac joint with "Z cc Depo-Medrol 2 cc Marcaine." (Tr. 294). Dr. Tucker noted that Plaintiff had problems with carpal tunnel syndrome for "quite some time, " and that Plaintiff finally agreed to have a nerve conduction study for that. (Tr. 294). There is nothing in the record to indicate that this study was every done.
On October 20, 2008, Dr. Tucker noted that Plaintiff had diffuse back tenderness and diffuse back pain. (Tr. 307). On November 24, 2008, Plaintiff questioned Dr. Tucker about ADD, and then diagnosed her with ADD.. (Tr. 312). On January 5, 2009, Plaintiff reported to Dr. Tucker that she had been weak and fatigued and had abdominal pain. (Tr. 321). On March 9, 2009, as Plaintiff was complaining that she had some chest pain which Dr. Tucker felt was pleuritic in nature, he diagnosed her with, inter alia, pleurisy. On July 20, 2009, Dr. Tucker found Plaintiff had tenderness diffusely of the thoracic and cervical spine. (Tr. 370).
On February 3, 2010, Plaintiff asked Dr. Tucker if she could switch back to taking Zoloft because she felt that the Wellbutrin was not helping. (Tr. 384). She also told Dr. Tucker that she was leaving the next morning to go to Florida to spend a couple of months with her daughter. (Tr. 384).
On June 29, 2010, a Mental RFC Assessment was completed by non-examining consultant, Abesie Kelly, Ph.D. (Tr. 434). In the assessment, Dr. Kelly found that due to the minimal impairment in activities of daily living and adaptive functioning, Plaintiff was able to perform work where interpersonal contact was incidental to work performed, e.g. assembly work; where complexity of tasks was learned and performed by rote, with few variables, and little judgment, and where supervision required was simple, direct and concrete (unskilled). (Tr. 436). In her Psychiatric Review Technique form of the same date, Dr. Kelly found Plaintiff had a mild degree of limitation in restriction of activities of daily living and a moderate degree of limitation in difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace. (Tr. 428). Plaintiff also had no episodes of decompensation, each of extended duration. (Tr. 428).
By letter dated July 27, 2010, chiropractor Mark S. Dean, DC, wrote a letter, wherein he stated that Plaintiff was essentially symptom free prior to leaving to go to Florida for a few months to take care of her daughter's child, and that she did receive some care on her return, as during her absence, her symptoms had returned somewhat. (Tr. 438-439). He indicated that conservative care was instituted. (Tr. 439). He concluded that overall, Plaintiff showed only minimal to fair success with conservative care, and he opined that she might do better with a work hardening program and/or training in activities of daily living, along with a structured exercise program to strengthen the muscles and ligaments surrounding the spine. (Tr. 439). He believed the diffuse degeneration in the cervical and lumbar spinal regions would most ...