Forrester v. Social Security Administration
MEMORANDUM AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's 2 Complaint with prejudice. Signed by Magistrate Judge Jerome T. Kearney on 1/6/2014. (jak) (Docket text modified on 1/6/2014 to correct the description of the document filed).(jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Acting Commissioner, Social
MEMORANDUM AND ORDER
Plaintiff, Sharon Forrester, has appealed the final decision
of the Commissioner of the Social Security Administration to deny
her claim for Disability Insurance benefits.
Both parties have
submitted appeal briefs and the case is ready for decision.2
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 free of legal error.
Slusser v. Astrue, 557
F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997); see also 42 U.S.C. §§ 405(g).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th
In assessing the substantiality of the evidence, the Court
On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. She is therefore substituted for
Michael J. Astrue pursuant to Fed.R.Civ.P. 25(d).
The parties have consented
Magistrate Judge. (Docket #4)
decision as well as evidence that supports it; the Court may not,
substantial evidence would have supported an opposite decision.
Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
"Disability" is the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period
of not less than 12 months."
42 U.S.C. § 423(d)(1)(A).
"’physical or mental impairment’ is an impairment that results from
anatomical, physiological, or psychological abnormalities which are
42 U.S.C. § 423(d)(3).
Plaintiff alleged that she was limited in her ability to work
Commissioner found that she was not disabled within the meaning of
the Social Security Act.
The only issue before this Court is
whether the Commissioner's decision that Plaintiff was not disabled
within the meaning of the Act is supported by substantial record
After conducting an administrative hearing at which Plaintiff
and a vocational expert testified, the Administrative Law Judge3
(ALJ) concluded that Plaintiff had not been under a disability
The Hon. David J. Manley.
within the meaning of the Social Security Act at any time from June
1, 2006, her alleged onset date, through March 31,
2011, her date
On October 16, 2012, the Appeals Council
denied Plaintiff's request for a review of the ALJ's decision,
making the ALJ's decision the final decision of the Commissioner.
Plaintiff then filed her complaint initiating this
After consideration of the record as a whole, the Court finds
that the decision of the Commissioner is supported by substantial
Plaintiff was 45 years old at the time of the hearing.
She is a high school graduate with one year of college.
She has past relevant work as a secretary or office
helper, bank teller, teacher’s aide and sales clerk.
(Tr. 18, 47-
The ALJ considered Plaintiff's impairments by way of the
required five-step sequential evaluation process.
The first step
involves a determination of whether the claimant is involved in
If the claimant is, benefits are denied, regardless of
Plaintiff was last insured for the purposes of Title II March
31, 2011. (Tr. 10, 12) In order to receive Disability Insurance
benefits, an applicant must establish that she was disabled before
the expiration of her insured status. 42 U.S.C. §§ 416(i), 423(c)
(1991); Dipple v. Astrue, 601 F.3d 833, 834 (8th Cir. 2010); Pyland
v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998); Battles v. Sullivan,
902 F.2d 657, 659 (8th Cir. 1990).
Step 2 involves a determination of whether the claimant has an
impairment or combination of impairments which is “severe” and
meets the duration requirement. Id. § 404.1520(a)(4)(ii). If not,
benefits are denied.
A “severe” impairment significantly
limits a claimant’s ability to perform basic work activities.
§ 404.1520(a)(4)(iii). If so, and the duration requirement is met,
benefits are awarded.
If the claimant does not meet or equal a Listing, then a
This residual functional capacity assessment is
utilized at Steps 4 and 5.
Step 4 involves a determination of whether the claimant has
sufficient residual functional capacity to perform past relevant
Id. § 404.1520(a)(4)(iv).
If so, benefits are denied.
Step 5 involves a determination of whether the claimant is
able to make an adjustment to other work, given claimant's age,
education and work experience.
Id. § 404.1520(a)(4)(v).
benefits are denied; if not, benefits are awarded.
The ALJ found Plaintiff was last insured for the purposes if
Title II March 31, 2011.
He found she had not engaged in
substantial gainful activity since her alleged onset date.5
He found she had worked since her alleged onset date, but the
work did not rise to the level of substantial gainful activity.
degenerative disc disease and peripheral vascular disease. Id. He
found she did not have an impairment or combination of impairments
Plaintiff’s allegations regarding the intensity, persistence and
limiting effects of her symptoms were not credible to the extent
that they were inconsistent with the residual functional capacity
which he found.6
The ALJ found that Plaintiff retained the residual functional
capacity for a full range of light work.
He found that,
through her date last insured, Plaintiff retained the residual
secretary or office helper, bank teller, teacher’s aide and sales
Thus, the ALJ concluded that Plaintiff was not
Plaintiff contends the ALJ erred in finding she could perform
a full range of light work.
(Plaintiff’s brief 12-15)
criticizes the ALJ for giving “significant weight” to the opinion
of the state agency physician. (Plaintiff’s brief 14) The ALJ did
not rely solely on the opinion of the Disability Determination
Services physician; he considered all the evidence in the record.
Included in that evidence was the fact that her
While there is nothing inherently objectionable about such a
finding, it makes judicial review of the next step in the
sequential analysis (ability to perform past relevant work)
difficult. Review is difficult because the findings do not make
clear which limitations the ALJ believed to be exaggerated. Young
v. Astrue, 702 F.3d 489, 493 (8th Cir. 2013)(Melloy, J.,
doctors urged her to exercise.
(Tr. 16, 17, 275, 287, 366)
To the extent that Plaintiff’s brief suggests that the burden
of proving her residual functional capacity
rested on the ALJ, it
Commissioner's burden, to prove the claimant's residual functional
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003);
v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995). Substantial evidence in
the record as a whole supports the ALJ’s residual functional
Next, Plaintiff contends the ALJ’s credibility determination
is not supported by substantial evidence.
(Plaintiff’s brief 15-
The ALJ considered Plaintiff's subjective complaints in light
of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).7
The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged
is just one factor to be considered in evaluating the
credibility of the testimony and complaints.
adjudicator must give full consideration to all of the
evidence presented relating to subjective complaints,
including the claimant's prior work record, and
observations by third parties and treating and examining
physicians relating to such matters as:
the claimant's daily activities;
the duration, frequency and intensity of the
The ALJ also cited Social Security Ruling 96-7p and 20 C.F.R.
§ 404.1529. (Tr. 15) That Ruling tracks Polaski and 20 C.F.R.
§ 404.1529(c)(3) and elaborates on them.
precipitating and aggravating factors;
The adjudicator is not free to accept or reject the
claimant's subjective complaints solely on the basis of
Subjective complaints may be
discounted if there are inconsistencies in the evidence
as a whole.
Polaski v. Heckler, 739 F.2d at 1322 (emphasis in original).
Plaintiff's claim of disability.
No evaluations showed medical
conditions that were disabling.
between the medical evidence and Plaintiff's subjective complaints
gave reason to discount those complaints.
Casey v. Astrue, 503
F.3d 687, 695 (8th Cir. 2007); Richmond v. Shalala, 23 F.3d 1141,
1443 (8th Cir. 1994).
Given the inconsistencies in Plaintiff's statements, the lack
Plaintiff's daily activities, her poor work record, her functional
capabilities and the lack of restriction placed on Plaintiff by her
physicians, the ALJ could rightly discount Plaintiff's subjective
See, e.g., McCoy v. Astrue, 648 F.3d 605, 614 (8th
Cir. 2011) (ALJ may discount subjective complaints if there are
inconsistencies in the record as a whole); Halverson v. Astrue, 600
F.3d 922, 932 (8th Cir. 2010)(same);
Guilliams v. Barnhart, 393
F.3d 798, 801 (8th Cir. 2005) (same); Dunahoo v. Apfel, 241 F.3d
inconsistent with the evidence as a whole); Dodson v. Chater, 101
F.3d 533, 534 (8th Cir. 1996) (after full consideration of all
complaints if there are inconsistencies in evidence as a whole).
The ALJ's credibility analysis was proper.
He followed the
law and regulations, made express credibility findings and gave
multiple valid reasons for discrediting Plaintiff’s subjective
E.g., Finch v. Astrue, 547 F.3d 933, 935-36 (8th Cir.
2008); Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996);
Reynolds v. Chater, 82 F.3d at 258;
224 (8th Cir. 1995).
Hall v. Chater, 62 F.3d 220,
His credibility findings are entitled to
deference as long as they are supported by good reasons and
Schultz v. Astrue, 479 F.3d 979, 983 (8th
Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003).
Next, Plaintiff argues the ALJ did not analyze her past
relevant work sufficiently to determine if she could perform it.
The ALJ had the vocational expert classify her past relevant work.
He also asked the vocational expert if he needed any
more information about any of her past relevant work in order to
testify about it; Dr. Sales answered that he did not need more
opportunity to cross-examine the vocational expert, but did not do
This was a Step 4 determination.
the burden of proving she could not perform any of her past
relevant work. E.g., Samons v. Astrue, 497 F.3d 813, 821 (8th Cir.
She did not meet that burden.
Finally, Plaintiff urges that the ALJ should have found her
mental impairment to be “severe” at Step 2. (Plaintiff’s brief 2022)
Plaintiff places undue emphasis on the distinction between
impairments that are “severe” and those that are not.
claimant gets past the Step 2 threshold of having a “severe”
impairment, the ALJ considers all impairments, including those that
are less than “severe,” in determining the claimant’s residual
20 C.F.R. § 404.1545(e) (2010); Social
Security Ruling 96-8p, at 5.
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 on the record as a whole which supports the decision of
E.g., Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir.
2008); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992).
The Court has reviewed the entire record, including the
briefs, the ALJ’s decision, the transcript of the hearing and the
medical and other evidence.
There is ample evidence on the record
as a whole that "a reasonable mind might accept as adequate to
support [the] conclusion" of the ALJ in this case.
Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v.
Barnhart, 372 F.3d 946, 950 (8th Cir. 2004).
decision is not based on legal error.
THEREFORE, the Court hereby affirms the final determination of
the Commissioner and dismisses Plaintiff's complaint with
IT IS SO ORDERED.
DATED this 6th day of January, 2014.
UNITED STATES MAGISTRATE JUDGE
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