Sulephen v. Social Security Administration

Filing 12

RECOMMENDED DISPOSITION recommending the Commissioner's decision be affirmed and that the case be dismissed with prejudice 2 ; Objections due within 14 days of the date of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 7/17/18. (tjb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
MATTHEW D. SULEPHEN
V.

PLAINTIFF

NO. 1:17CV00113 BSM-JTR

NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions not reserved
to the Commissioner of Social Security

DEFENDANT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Brian S. Miller. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your objections; and (2) be
received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal questions of
fact.
I. Introduction:
Plaintiff, Matthew D. Sulephen, applied for disability benefits on June 15,
2015, alleging a disability onset date of June 1, 2015. (Tr. at 14). After conducting a
hearing, the Administrative Law Judge (“ALJ”) denied his application. (Tr. at 21).
The Appeals Council denied his request for review. (Tr. at 1). Thus, the ALJ=s
decision now stands as the final decision of the Commissioner.

For the reasons stated below, the Commissioner’s decision should be
affirmed.
II. The Commissioner=s Decision:
The ALJ found that Sulephen had not engaged in substantial gainful activity
since the alleged onset date of June 1, 2015. (Tr. at 16). At Step Two, the ALJ found
that Sulephen has the following severe impairments: obesity and back pain. Id.
After finding that Sulephen’s impairment did not meet or equal a listed
impairment (Tr. at 17), the ALJ determined that Sulephen had the residual functional
capacity (ARFC@) to perform sedentary work, except that he could not perform
frequent stooping, crouching, climbing, or balancing. Id.
The ALJ found that Sulephen was unable to perform past relevant work. (Tr.
at 19). At Step Five, the ALJ relied on the testimony of a Vocational Expert ("VE")
to find that, based on Sulephen's age, education, work experience and RFC, jobs
existed in significant numbers in the national economy that he could perform,
including work as a food and beverage order clerk and circuit board assembler. (Tr.
at 20). Consequently, the ALJ found that Sulephen was not disabled. Id.
III.

Discussion:
A.

Standard of Review

The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and whether

it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see
also 42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable
mind might accept as adequate to support a conclusion, “substantial evidence on the
record as a whole” requires a court to engage in a more scrutinizing analysis:
“[O]ur review is more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s
decision; we also take into account whatever in the record fairly
detracts from that decision.” Reversal is not warranted, however,
“merely because substantial evidence would have supported an
opposite decision.”
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence in
the record which contradicts his findings. The test is whether there is substantial
evidence in the record as a whole which supports the decision of the ALJ. Miller,
784 F.3d at 477.
B. Sulephen=s Arguments on Appeal
Sulephen contends that substantial evidence does not support the ALJ=s
decision to deny benefits. He argues that the ALJ did not conduct a proper credibility
analysis. After reviewing the record as a whole, the Court concludes that the ALJ
did not err in denying benefits.

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Sulephen alleges disability as a result of morbid obesity and back pain. He
saw his physician four times in 2014, for back pain and a consultation on weight
management. (Tr. at 354-362). He was prescribed Ibuprofen 800 mg and muscle
relaxers for pain. Id. The only objective testing in the record was a lumbar x-ray,
taken on August 25, 2015. (Tr. at 374). It showed that lumbar alignment was normal,
and intervertebral disc space was maintained. Id. The diagnosis was lumbar
spondylosis with mild intervertebral disc height loss at L5-S1. Id. Objective tests
showing mild to moderate conditions do not support a finding of disability.
Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004).
In 2016, Sulephen had five doctor visits. (Tr. at 405-442). At those
appointments, musculoskeletal examinations were grossly normal. Id. Sulephen’s
doctor noted at all of these visits that Sulephen was “doing OK” with no major
problems, and that his medications were generally effective with no side effects. Id.
Impairments that are controllable or amenable to treatment do not support a finding
of total disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). No further
objective testing was done, and Sulephen did not require more than medication
management for back pain. He likewise did not indicate that he was engaging in a
weight loss program or that he had undergone weight loss surgery as of the date of
the decision. The need for only conservative treatment contradicts allegations of
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disabling conditions. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). The
sparse medical record does not support Sulephen’s claims of disability.
Nevertheless, Sulephen argues that remand is appropriate because the ALJ did
not conduct a proper credibility analysis. Social Security Ruling 16-3p, 2016 SSR
LEXIS 4 (“SSR 16-3p”), removed the word "credibility" from the analysis of a
claimant's subjective complaints, replacing it with “consistency” of a claimant’s
allegations with other evidence. SSR 16-3p became effective on March 28, 2016,
and the underlying analysis incorporates the familiar factors that were in place prior
to the new rule. The ALJ must still give consideration to all of the evidence presented
relating to subjective complaints, including: 1) prior work record; 2) the claimant’s
daily activities; 2) the duration, frequency, and intensity of pain; 3) precipitating and
aggravating factors; 4) dosage, effectiveness and side effects of medication; and 5)
functional restrictions. Polaski v. Heckler, 751 F.2d 943, 948 (8th Cir. 1984).
Sulephen argues that the ALJ did not discuss these factors.
The ALJ is not required to explicitly discuss each factor. See Brown v.
Chater, 87 F.3d 963, 966 (8th Cir. 1996). He may discount subjective complaints if
there are inconsistencies in the record as a whole. Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
Although the ALJ’s analysis was short, he did mention that medication
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controlled Sulephen’s symptoms. (Tr. at 17). He also considered relatively normal
results from objective testing (Tr. at 18), and he commented that Sulephen’s ability
to work during the relevant time period “[drew] upon the issue of consistency.” (Tr.
at 16). The ALJ also discussed the opinions of state-agency medical experts, finding
their assignment of a sedentary RFC to be persuasive when framed by the medical
evidence (Tr. at 19). Finally, although the ALJ did not explicitly address Sulephen’s
activities of daily living, Sulephen’s ability to cook, do chores, perform personal
care, shop in stores, and mow his yard all support the ALJ’s SSR 16-3p finding.
While the ALJ’s discussion was short, “an arguable deficiency in opinionwriting technique is not a sufficient reason for setting aside an administrative finding
where the deficiency probably had no practical effect on the outcome of the case."
Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987). A more thorough analysis and
discussion by the ALJ would have still yielded the same result: a finding that
Sulephen was not disabled.
V.

Conclusion:
There is substantial evidence to support the Commissioner=s decision that

Sulephen was not disabled. The ALJ properly considered the consistency of
Sulephen’s subjective complaints.

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IT IS THEREFORE RECOMMENDED that the Commissioner’s decision be
AFFIRMED and that the case be DISMISSED, with prejudice.
DATED this 17th day of July, 2018.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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