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Spears v. Colvin

United States District Court, E.D. Arkansas

July 25, 2016

Delena A. Spears, Plaintiff,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Defendant.

          Delena A Spears, Plaintiff, represented by Laura J. McKinnon, McKinnon Law Firm.

          Social Security Administration, Defendant, represented by Martin W. Long, Social Security Administration & Stacey Elise McCord, U.S. Attorney's Office.


          JEROME T. KEARNEY, Magistrate Judge.

         Instructions. The following recommended disposition was prepared for U.S. District Judge Susan W. Wright. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.[1] The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.[2] If no objections are filed, Judge Wright may adopt the recommended disposition without independently reviewing all of the record evidence.

         Background. Delena A. Spears seeks judicial review of the denial of her application for social security disability benefits.[3] Spears worked at a bait shop when she was diagnosed with hepatitis C.[4] She quit her job and applied for disability benefits.[5] She based disability on hepatitis C, hypothyroidism, cirrhosis of the liver, and depression.[6]

         The Commissioner's decision. The ALJ identified adjustment disorder, polysubstance abuse by history, hepatitis C, cirrhosis of the liver, and migraines as severe impairments.[7] The ALJ determined Spears can do unskilled light work.[8] The ALJ consulted a vocational expert, determined jobs existed that Spears could do, and denied the application.[9]

         After the Appeals Council denied review, [10] the ALJ's decision became the Commissioner's final decision for the purpose of judicial review.[11] Spears filed this case to challenge the decision.[12] In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[13] This recommendation explains why the court should affirm the decision.

         Spears's allegations. Spears challenges three aspects of the decision: (1) development of the record, (2) the psychiatric review technique, and (3) the determination that she can do unskilled light work. She contends substantial evidence does not support the decision.[14]

         Applicable legal principles. For substantial evidence to exist, a reasonable mind must accept the evidence as adequate to show Spears can do light work.[15] "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."[16] The ALJ required unskilled work; that is, work involving (1) simple, routine, repetitive tasks; (2) incidental interpersonal contact; and (3) simple, direct, concrete supervision.[17] A reasonable mind will accept the evidence as adequate to support the decision for the following reasons:

         1. Medical evidence established no disabling physical symptoms. The claimant must prove disabling symptoms with medical evidence; subjective allegations are not enough.[18] On January 3, 2013, lab work confirmed the presence of hepatitis C[19] - an inflammatory disease of the liver.

         After the lab work, a gastroenterologist examined Spears. The gastroenterologist diagnosed hepatitis C, cirrhosis of the liver, and hypertension; he attributed cirrhosis to alcohol use and hypertension to cirrhosis.[20] At that time, Spears's abdomen was distended, but she had no ascites in the abdomen.[21] This finding is significant because ascites signal severe disease.[22] At the hearing, Spears testified about numerous disabling symptoms, but treatment records contradicted the testimony. According to agency medical experts, the medical evidence established no severe impairment.[23]

         After the hearing, Spears began drug therapy for hepatitis C. Treatment notes showed she tolerated treatment[24] until she over-dosed on an anti-depressant. Spears was admitted to a hospital mental health unit and treated for elevated liver enzymes.[25] The record doesn't detail the treatment, but later treatment records showed Spears had a good result.[26] Plans were made to resume drug therapy. No evidence suggests Spears lacked the capacity to do light work.

         2. The ALJ accounted for mental impairment. On judicial review, Spears relies, in significant part, on mental impairment. Because the ALJ rejected a therapist's medical statement, she contends the ALJ should have done more to develop the record.

         The ALJ has a duty to fairly and fully develop the record as to the matters at issue.[27] Spears's claim placed depression at issue. The ALJ responded by ordering a mental diagnostic exam. The mental examiner was unable to assess Spears's mental state due to exaggerated dramatic behavior; the examiner characterized exam results as invalid.[28]

         Spears contends her mental state later deteriorated. She relies on a one-time diagnosis of hepatic encephalopathy - a decline in brain function from severe liver disease - but that diagnosis was a tertiary diagnosis by someone who is not an acceptable medical source for the purpose of establishing a medically determinable impairment.[29] The medical statement flowed from a referral for marijuana addiction.[30] Treatment for hepatitis C was delayed because Spears used marijuana. Spears may have suffered some depression and anxiety related to hepatitis C, but her primary diagnosis was cannabis addiction.[31]

         Spears insists her mental state deteriorated further, manifesting in a suicide attempt, but the record documented hospitalization "in the Psychiatric unit for some depression and altered mentation, "[32] not a suicide attempt. Spears's report of a 14-day hospitalization is unsubstantiated. Even if Spears's mental state deteriorated due to hepatitis C treatment, [33] she reported feeling much better a few days later.[34]

         Spears's argument about a flawed psychiatric review technique lacks support. The ALJ relied on mental health experts[35] and treatment records. Her complaint is based on disagreement, rather than flawed process. Spears contends the ALJ should have ordered a second mental exam, but the record provided sufficient evidence to determine whether Spears was disabled.[36]

         Spears likely had some mental impairment. She had minimum education.[37] The mental diagnostic examiner diagnosed adjustment disorder and suspected borderline intellectual functioning;[38] the therapist who prepared the medical statement characterized Spears as average functioning.[39] She took anti-depressant medication. To the extent Spears was mentally impaired, the ALJ accounted for mental impairment by requiring work involving (1) simple, routine, repetitive tasks; (2) incidental interpersonal contact; and (3) simple, direct, concrete supervision.

         3. Vocational evidence supports the decision. A vocational expert classified past work as a work bench operator as semi-skilled medium work, a warehouse worker as unskilled medium work, and a kitchen supervisor as skilled medium work.[40] Because this ...

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