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Evans v. Colvin

United States District Court, E.D. Arkansas

February 6, 2015

Kathi Sue Evans, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant.

ORDER AFFIRMING THE COMMISSIONER

J. THOMAS RAY, Magistrate Judge.

Kathi Sue Evans seeks judicial review of the denial of her application for disability insurance benefits (DIB). This is Evans's second application for disability. Her previous application was denied on July 13, 2010.[1] Evans last worked in February 2009 as a customer service representative.[2] Evans applied for DIB on April 6, 2011, with an alleged onset date of March 28, 2009.[3] Evans's date last insured (DLI) is December 31, 2013.[4] Evans bases disability on fibromyalgia, celiac disease, asthma, osteoarthritis, manic depression and lupus.[5]

The Commissioner's decision. The Commissioner's ALJ determined that Evans has not engaged in substantial gainful activity since the alleged onset date.[6] Evans has severe impairments - fibromyalgia; celiac disease; a history of juvenile rheumatoid arthritis; depressive disorder, not otherwise specified; and pain disorder associated with both medical and psychological factors.[7] None of Evans's severe impairments meet the Listings, [8] and Evans can perform sedentary work except that she needs to have the option to sit and stand at will with only occasional use of her hands to grasp or finger, and she is limited to simple, routine, repetitive tasks with only occasional interaction with co-workers and the general public.[9] The ALJ held that Evans cannot perform any past relevant work, [10] but can perform the positions of surveillance monitor, call-out operator and order clerk, positions identified by the vocational expert (VE) as available in the state and national economies.[11] Evans's application was denied.[12]

After the Commissioner's Appeals Council denied a request for review, the ALJ's decision became a final decision for judicial review.[13] Evans 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.[14]

Evans's allegations. Evans maintains that the ALJ's denial of disability benefits should be reversed because (1) the credibility determination is not supported by substantial evidence; and (2) the VE's testimony conflicts with the Dictionary of Occupational Titles (DOT).

Substantial evidence is "less than a preponderance but... enough that a reasonable mind would find it adequate to support the conclusion."[15] For substantial evidence to exist in this case, a reasonable mind must accept the evidence as adequate to support the ALJ's denial of benefits.[16]

Credibility. Evans asserts that the ALJ erred in the credibility determination with respect to her allegations of disabling pain and symptoms related to fibromyalgia, depression and celiac disease. After reviewing the medical record, the ALJ determined that Evans was not credible to the extent that her statements were inconsistent with the RFC.

An ALJ must evaluate the claimant's credibility because subjective complaints play a role in determining the claimant's ability to work.[17] To evaluate Evans's credibility, the ALJ followed the required two-step process and considered the required factors, [18] so the dispositive question is whether substantial evidence supports the credibility evaluation. The ALJ's determination that Evans'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.

Evans's allegations of disabling pain and symptoms associated with fibromyalgia are inconsistent with the medical records. Evans has reported symptoms associated with fibromyalgia since July 2009.[19] Fibromyalgia is the "inflammation of the fibrous or connective tissue (muscles, joints, ligaments, and tendons) of the body. It is characterized by muscle pain, fatigue, and multiple tender points on the body."[20] Medical standards provide for a diagnosis of fibromyalgia if a patient has "widespread pain in combination with tenderness in at least 1 of the 18 sites known as trigger points."[21] In April 2010, a consulting physician noted that Evans exhibited tenderness in all 18 trigger points and assessed fibromyalgia.[22]

The records establish that Evans was not prescribed medication for fibromyalgia until approximately nine months following her initial complaints of pain.[23] This is inconsistent will allegations of disabling pain. Further, it appears that the medications prescribed for the treatment of fibromyalgia remained basically unchanged throughout the medical records. Evans was prescribed Savella and Lyrica in April 2010.[24] Evans testified at the hearing that she is still prescribed Savella and Lyrica.[25] The only real change in her medications has been the addition of a pain reliever, which she has also been prescribed since 2010.[26] The consistency in the medications prescribed for Evans's fibromyalgia supports the ALJ's credibility determination because it suggests that the prescription medications provide Evans with some relief. If they did not, a different course in treatment would be necessary.

The observations and notes contained in the medical records do not support allegations of disabling pain. Multiple notes indicate that Evans exhibited a full range of motion, a normal gait and/or was in no acute/apparent distress.[27] Importantly, during two appointments in which Evans complained of pain, upon physical examination her treating physician found no joint swelling, normal movements of all extremities, and/or normal muscle strength and tone.[28] In June 2011 and August 2011, Evans's treating physician noted stable myalgia, [29] stable arthralgia, [30] stable diffuse pain and stable diffuse tenderness.[31] In August 2011, it was noted that Evans was "doing well with no complaints."[32]

Providing further support for the credibility determination is the fact that there are large periods of time in the record during which Evans sought no medical care for the allegedly disabling fibromyalgia - or for any other impairment. Following an October 2009 appointment, Evans went approximately six months without medical care.[33] In February 2012, Evans was seen by her treating physician for knee pain.[34] Subsequently, however, Evans went over a year without medical care. This is inconsistent with allegations of disabling pain, and supports the ALJ's credibility determination.[35]

In April 2011, a Physical Residual Functional Capacity Assessment was completed by an SSA physician.[36] After reviewing the medical records, the physician assigned no non-exertional limitations and determined that Evans is capable of performing light work.[37] This assessment was affirmed by a second state physician in June 2011, and supports the ALJ's credibility determination.[38]

Evans's abilities with respect to activities of daily living also weigh against her allegations of disabling pain and symptoms. In the Function Report, Evans stated that she wakes up at 6:00 a.m. and gets her children ready for school.[39] She lets the dog out and tries to clean the house.[40] In the afternoon and evening she helps her children with homework, cooks dinner with her daughter, and puts the children to bed.[41] She has no problems with personal care, and is able to drive and leave her house alone.[42] Evans is further able to grocery shop once a week for a few ...


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