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Thomas v. Colvin

United States District Court, E.D. Arkansas, Jonesboro Division

December 12, 2016

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration DEFENDANT


         I. Introduction:

         Plaintiff, Amy Thomas, applied for supplemental security income (“SSI”) benefits on January 24, 2013, alleging a disability onset date of September 1, 1996.[1] (Tr. at 42) Ms. Thomas previously received SSI benefits from 1997 to 2008, the year she got married, at which time she lost her benefits because she had too much income. (Tr. at 61, 251) After conducting a hearing in this case, the Administrative Law Judge (“ALJ”) denied her application. (Tr. at 50) The Appeals Council denied her request for review. (Tr. at 1) The ALJ's decision now stands as the final decision of the Commissioner, and Ms. Thomas has requested judicial review.

         II. The Commissioner's Decision:

         The ALJ found that Ms. Thomas had not engaged in substantial gainful activity since the alleged onset date of January 24, 2013. (Tr. at 44) At Step Two, the ALJ found that Ms. Thomas has the following severe impairments: arthritis in the knees, hips, and back; obesity; borderline intellectual functioning; affective disorder; major depressive disorder; asthma; and anxiety disorder. Id.

         After finding that Ms. Thomas's impairments did not meet or equal a listed impairment (Tr. at 44), the ALJ determined that Ms. Thomas had the residual functional capacity (“RFC”) to perform sedentary work except that: she could stand for 2 hours in an 8-hour day; could not perform work that requires climbing ladders, ropes and scaffolds; could not perform work that requires crouching, crawling, or kneeling; could not perform work that requires more than the occasional performance of each remaining postural function; could not perform work with exposure to unprotected heights; work must allow access to the work area with a cane if necessary; she was limited to no more than frequent handling and fingering duties; she could not tolerate more than occasional changes to the workplace setting or exposure to concentrated fumes, odors, or gases; she was limited to work where interpersonal contact is incidental to the work performed; the complexity of 1-to-2 step tasks is learned and performed by rote with few variables and little judgment; the supervision required would be simple, direct, and concrete; and the work must be limited to SVP 1 or 2 jobs that can be learned within 30 days.[2] (Tr. at 45-46)

         The ALJ found that Ms. Thomas had no past relevant work. (Tr. at 49) At Step Five, the ALJ relied on the testimony of a Vocational Expert (“VE”) to find that, based on Ms. Thomas's age, education, work experience and RFC, jobs existed in significant numbers in the national economy that she could perform at the sedentary level, specifically, machine tending and new accounts clerk. (Tr. at 50) Based on that Step Five determination, the ALJ found that Ms. Thomas was not disabled. Id.

         III. Discussion:

         A. Standard of Review

         The Court's role is to determine whether the Commissioner's findings are supported by substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). “Substantial evidence” in this context means less than a preponderance but more than a scintilla. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). In other words, it is “enough that a reasonable mind would find it adequate to support the ALJ's decision.” Id. (citation omitted). The Court must consider not only evidence that supports the Commissioner's decision, but also evidence that supports a contrary outcome. The Court cannot reverse the decision, however, “merely because substantial evidence exists for the opposite decision.” Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)).

         B. Ms. Thomas's Argument on Appeal

         Ms. Thomas argues that substantial evidence does not support the ALJ's decision to deny benefits because the ALJ did not address whether Ms. Thomas met listing 12.05C with respect to her allegation of borderline intellectual functioning (Adult Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. § 12.05); because the ALJ failed to give proper weight to the opinions of Dr. Ronald Hollis, M.D.; and because the VE was not responsive to the ALJ's hypothetical.[3]

         At the time of the hearing, Ms. Thomas was 36 years old, 5'5" tall, and over 400 pounds, with a Body Mass. Index (“BMI”) of 71, which is morbidly obese. (Tr. at 13, 47) She alleged she was “mentally retarded” and was in special resource classes in high school. (Tr. at 63-70, 258) She graduated high school, however, and had a driver's license. (Tr. at 63-70). Ms. Thomas submitted no records of special resource classes or school accommodation. No records prior to 2011, when she was 33 years old, are in evidence.

         Ms. Thomas could read and write and do basic math functions, including making change, paying bills, and using a checkbook. Id. She stated that she did not drive much because of anxiety, which was exacerbated when she left the house or interacted with others. (Tr. at 63-65, 70) She lived alone with her young son and cared for him two weeks a month. (Tr. at 67-68) She could do some chores, cook and shop, but also needed some help from her father. (Tr. at 69) She sat in a chair to do chores and used a scooter at the grocery store. Id. She liked to read and sing karaoke with her family at a bar once every two weeks. (Tr. at 71)

         At the request of the state, Dr. Suzanne Gibbard, Ph.D., performed a mental status exam, intellectual assessment, and evaluation of adaptive functioning on January 6, 2011. (Tr. at 251-255) Ms. Thomas reported that she bathed and dressed herself, drove, handled her own finances, participated in social activities, and was not taking medications at the time of the examination. (Tr. at 255)

         Dr. Gibbard performed a WAIS-III IQ test on Ms. Thomas. The test revealed a verbal IQ of 73, a performance IQ of 72, and a Full Scale IQ of 70. (Tr. at 254). Dr. Gibbard diagnosed depressive disorder, anxiety disorder, and borderline intellectual functioning. Id. Dr. Gibbard found the results to be a valid and reliable sample of Ms. Thomas's level of intellectual functioning. Id. Dr. Gibbard concluded that work tasks would need to be relatively simple and repetitive and that Ms. Thomas would have some problems with sustaining concentration; but no other problems in adaptive functioning were reported. (Tr. at 55)

         On March 9, 2011, state agency physician Dr. Ralph Joseph, M.D., conducted a physical examination of Ms. Thomas. (Tr. 256-62) She complained of asthma, joint pains, and stated she was “mentally retarded.” (Tr. at 258) Dr. Joseph found her range of motion to be normal. (Tr. at 260) He diagnosed severe obesity, marked depression, anxiety, slow learner, and general arthralgia. (Tr. at 362)

         Ms. Thomas's treating physician, Dr. Ronald Hollis, M.D., reportedly treated her from 2005 through 2015, but she provided no records from him prior to 2011. (Docket entry #12 at 5) At various visits from 2011 to 2015, Dr. Hollis treated Ms. Thomas for hypertension, morbid obesity, osteoarthritis, depression and anxiety.[4] (Tr. 36-38, 264, 265, 271-275, 291-295, 315-317 319-324, 345) Over that time, he prescribed Mobic, hydrocodone, and Celexa for pain; Xanax for anxiety; Prozac for depression; and Ambien for sleep. Id. Ms. Thomas testified that the medicines helped a little and had no side effects. (Tr. at 66-67)

         Ms. Thomas reported that she underwent a nerve conduction study on her hands.[5](Tr. at 61-62) She also said that Dr. Hollis recommended surgery for carpal tunnel syndrome but she elected not to have the surgery because her insurance ran out. (Tr. at 66) There is no record that Ms. Thomas sought low- or no-cost treatment. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (absent evidence claimant was denied low-cost or free medical care, claimant's argument he could not afford medical care was appropriately discounted). Ms. Thomas also testified that her doctor told her she should wear braces on her arms and knees, but she chose not to follow that advice. (Tr. at 67) Ms. Thomas did not attempt to participate in physical therapy or pursue any orthopedic or pain management care. Overall, she did not follow her doctor's recommendations and pursued only conservative treatment.

         Dr. Hollis completed two residual functional capacity questionnaires. The first, completed on March 5, 2013, indicated severe functional physical limitations due to pain and fatigue. (Tr. 271-272). He completed the second report on March 11, 2014. (Tr. at 315-317). His conclusion in both reports was that Ms. Thomas could not complete an 8hour work day 5 days a week due to physical limitations. (Tr. at 271-272) The second report showed nearly incapacitating physical limitations. The important differences between the first and second reports, discussed more fully below, are as follows:

         March 5, 2013 report: 1) She could sit for 60 minutes at a time for a total of 4 hours in a normal workday; 2) she could stand/walk for 5 minutes at a time; 3) she would need unscheduled breaks lasting about 30 minutes; 4) she could use her fingers for gross manipulation 50% of the workday and her fingers for fine manipulation 100% of the workday; and 5) she could use her arms for reaching 15% of the workday. (Tr. at 271-272)

         March 11, 2014 report: 1) She could sit for 10 minutes at a time for a total of 3 hours during the workday; 2) she could not stand/walk for any period of time; 3) she would need unscheduled breaks lasting about 15-20 minutes; 4) she could handle and finger 20% of the workday; and 5) she could not engage in any reaching during the workday. (Tr. at 315-317)

         The mental capacity portions of Dr. Hollis's two reports indicated marked limitations in keeping a schedule and regular attendance at work, and moderate limitations in her ability to complete a normal workweek at a consistent pace without interruptions from psychologically based symptoms. (Tr. at 273-275). Any other limitations were mild or less than mild. He did not conduct any adaptive or cognitive testing.

         On April 1, 2013, Ms. Thomas underwent a state-agency physical examination by Dr. Joseph Patterson, M.D. He found mild limitations on the range of motion in her shoulders, elbows, hips, knees, and lumbar and cervical spine. (Tr. 281-282) Straight-leg raise was negative and she had no muscle spasm, joint deformities, instability, muscle weakness, muscle atrophy, or sensory abnormalities. Id. She had an antalgic gait and could not tandem walk, which could be attributed to her morbid obesity. Id. Dr. Patterson ...

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