Thayer v. Social Security Administration
ORDER affirming the final decision of the Commissioner and dismissing with prejudice Thayer's complaint. Signed by Magistrate Judge Patricia S. Harris on 7/11/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 3:16CV00315 PSH
NANCY A. BERRYHILL, Commissioner,
Social Security Administration
Plaintiff Valerie Thayer (“Thayer”), in her appeal of the final decision of the Commissioner
of the Social Security Administration (defendant “Berryhill”) to deny her claim for Disability
Insurance benefits (DIB) and supplemental security income (SSI), contends the decision by the
Administrative Law Judge (“ALJ”) was erroneous because he incorrectly determined her residual
functional capacity (“RFC”) and failed to fairly and fully develop the record. The parties have ably
summarized the medical records and the testimony given at the administrative hearing conducted
on September 21, 2015. (Tr. 30-60). The Court has carefully reviewed the record to determine
whether there is substantial evidence in the administrative record to support Berryhill’s decision.
42 U.S.C. § 405(g). Thayer alleged her disability onset date to be September 9, 2012, so the relevant
period for the purpose of this Order is from the onset date through November 12, 2015, when the
ALJ issued his ruling.
Administrative hearing: Thayer testified she was 38 years old, with a high school education
and a certified nurse’s assistant (“CNA”) license. Although she drives very little due to stress and
anxiety, Thayer indicated she has a valid driver’s licence. At the time of the hearing, Thayer stated
she was working 25 hours per week sitting with her ill mother. She further indicated she last worked
as a CNA in 2015, quitting the job because it was too physically demanding. In December 2012
Thayer stated she had back surgery – discectomy.
Thayer cited the following barriers to
employment: constant back pain precluding her from standing or sitting for long periods; anxiety;
post traumatic stress disorder (“PTSD”); bi-polar disorder; and episodes of passing out. Thayer
listed her current medications as Oxycodone for pain, Alprazolam, Xanax or Buspar for anxiety,
iron, vitamin D, and a multivitamin. Her medications help her “a little bit” for a couple of hours,
according to Thayer, and she has no side effects from them. (Tr. 44). Thayer stated she uses a back
brace, which was not prescribed by medical personnel.
Thayer lives with her husband and two daughters, aged 13 and 2. She testified to being able
to tend to her daily hygiene needs and medications, and to helping with the 2 year old, as well as
helping with laundry, dishes, cooking, and shopping. Thayer estimated she could sit up to one hour
in a padded chair or stand up to 30 minutes before her back pain would be aggravated. Thayer
testified she did not like “to be with people.” (Tr. 51). She allowed that she would be unable to
perform the job of housekeeper because of the physical demands. (Tr. 30-53).
David Elmore (“Elmore”), a vocational expert, was called to testify. The ALJ asked Elmore
to assume a worker of Thayer’s age, education, and experience, who could perform sedentary work
with numerous restrictions.1 Elmore testified such a worker could not perform Thayer’s past
The restrictions were: no climbing or ladders, ropes or scaffolds, and no balancing duties; no more
than occasional climbing of ramps and stairs, stooping, crouching, kneeling, and crawling; no
exposure to unprotected heights or hazards; no more than occasional changes in the work place;
unskilled work where interpersonal contact would be incidental to the work performed; supervision
would be simple, direct, and concrete; and the work would have an svp (“specific vocational
relevant work but could perform other jobs in the national economy, such as the jobs of watch
crystal attacher or general office clerk. If the hypothetical worker were assumed to be absent more
than 3 days a month, or to have the need to lay down or elevate her legs during the work day, Elmore
stated the jobs previously identified would not be available. (Tr. 54-59).
ALJ’s Decision: In his November 2015 opinion, the ALJ found Thayer had severe
impairments of lumbar spine degenerative disc disease, status post discectomy, and PTSD. He
addressed Thayer’s hypoglycemia and episodes of syncope, finding them non-severe because they
were not of a sufficient duration to qualify as severe. The ALJ found Thayer had the RFC to
perform sedentary work with the limitations which mirrored his question posed to the vocational
expert and listed in footnote one herein. The ALJ found Thayer’s administrative hearing testimony
was “not entirely credible,” citing the objective medical evidence which included a possible
reference to malingering in the records, as well as Thayer’s daily activities, her work activity after
her onset date, and her work activity at the time of the administrative hearing. (Tr. 19). The ALJ
also considered the witness statement submitted by Thayer’s husband, finding it was “partially
credible.” (Tr. 21). The ALJ focused on the findings of Thayer’s treating and consulting
physicians.2 Finally, the ALJ assigned little weight to the findings of the state agency physicians
regarding their opinion that Thayer could perform light work. The ALJ assigned great weight to the
state agency psychologists’ findings regarding Thayer’s mental RFC, concluding these findings were
preparation”) rating of 1 or 2 and the job could be learned within 30 days. (Tr. 56).
No treating or consulting physician opined Thayer was unable to work for twelve consecutive
months during the relevant time period. Treating physician Kristi Statler (“Statler”) wrote on June
24, 2015 that Thayer “has been unable to work due to Syncopal Episodes” and was currently
undergoing testing. (Tr. 453).
thorough and “supportable.” (Tr. 21).
The ALJ erred in finding Thayer can perform sedentary work with restrictions:
Thayer challenges both the physical and mental components of the ALJ’s RFC
determination. Initially, we note that the RFC need not mirror the findings of any one physician,
as the ALJ is not bound to choose any one physician and adopt his/her findings as the appropriate
RFC. Instead, it “is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and claimant’s
own descriptions of his limitations.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
Here, the ALJ found Thayer capable of performing sedentary work with the numerous limitations
already recited herein. These limitations were related to both Thayer’s back issues and her
mental/emotional issues. In reaching the RFC determination, the ALJ examined Thayer’s medical
records in detail.
Physical component of the RFC: The ALJ found Thayer had the severe physical impairment
of lumbar spine degenerative disc disease, status post discectomy. In reviewing the medical
evidence, the ALJ cited the December 2012 lumbar surgery and the follow up appointments in
January and March 2013. Thayer reported “excellent relief of leg pain” in January and no leg pain,
numbness, or tingling in March 2013. (Tr. 381). At her March appointment, she also indicated she
was “doing her normal activities without much difficulty.” (Tr. 379). Thayer’s next medical
appointment was fourteen months later, in May 2014, when she was seen at NEA Baptist Clinic as
a new patient. She complained of epigastric pain and stated she still had low back pain, as well as
stomach pains, chest discomfort and shortness of breath. On physical examination, Dr. Gordon Akin
(“Akin”) recorded that Thayer’s “response to physical examination appears to be exaggerated.” (Tr.
376). Akin assessed Thayer as “overall appears healthy but quite anxious,” and diagnosed her with
chronic PTSD and postlaminectomy syndrome. Id. Thayer was seen again at NEA Baptist Clinic
in July 2014 for gallbladder problems. She was assessed as well developed, well nourished, with
full range of motion and muscle strength and tone equal bilaterally. (Tr. 373). Thayer was seen by
Statler several times in 2015, and complained of passing out in June 2015. A June 2015
mammogram was benign, and a June 2015 EEG was normal.
The ALJ thoroughly considered the medical evidence, as well as the other evidence of
record, and concluded Thayer had the RFC to perform sedentary work with numerous restrictions.
Substantial evidence supports the ALJ’s conclusion. The parties quarrel over the weight to be given
to the May 2014 notation that Thayer’s response to physical examination appeared to be
exaggerated. The ALJ construed this as evidence of “possible malingering or misrepresentation”
and Thayer disagrees with this characterization. The undersigned places no value on whether this
entry shows Thayer was malingering. Regardless of how this entry was construed, the overall
medical evidence strongly supports the physical component of the RFC. In particular, the ALJ
rightly cited Thayer’s daily activities, her work activity after the onset date, and her work activity
at the time of the administrative hearing. The elements of the physical RFC are not onerous, and
there is no error in the ALJ’s finding that Thayer could perform sedentary work with numerous
Mental component of the RFC: The ALJ included numerous mental restrictions in the type
of work which Thayer could perform: the work could involve no more than occasional changes;
would be unskilled work where interpersonal contact would be incidental to the work performed;
supervision would be simple, direct, and concrete; the work would have an svp rating of 1 or 2; and
the job could be learned within 30 days. These restrictions were concessions to Thayer’s anxiety
issues relating to her severe impairment of PTSD. Our inquiry is whether substantial evidence
supports the ALJ’s restrictions in this regard. The ALJ gave “great weight” to the findings
contained in the consultative psychological assessment of Dr. Catherine Hubbard Adams (“Adams”).
In September 2014, Adams diagnosed Thayer with PTSD, ruled out personality disorder, and made
the following specific findings concerning adaptive functioning: Thayer’s mental impairments
interfere with age-appropriate chore completion and driving, her interactions were mostly socially
appropriate, she communicated in a manner that was effective and intelligible, she seems to have
severe difficulty coping with work-type demands, she seems to have mild difficulty attending and
sustaining concentration on basic tasks, she seems to have moderate difficulty sustaining persistence
in completing work tasks, and she seems to have moderate difficulty completing tasks within an
acceptable time frame. (Tr. 389-393).
The ALJ noted Thayer to have normal affect and mood during visits to Statler in September
2012 and June 2014, and to have received no other counseling or other forms of therapy for PTSD.
The ALJ also cited Thayer’s daily activities to support his conclusion that she could perform the
work activities described in the initial hypothetical question posed to Elmore. We find substantial
evidence supports the ALJ’s decision in this regard. The ALJ adequately accounted for Thayer’s
mental limitations by incorporating many restrictions in the type work which she could perform.
There was no error in this regard.
The ALJ failed to fairly and fully develop the record:
The parties agree the ALJ is duty bound to develop the record fully and fairly. Stormo v. Barnhart,
377 F.3d 801 (8th Cir. 2004). Thayer urges the record was inadequate because there was no opinion
from a treating or examining doctor regarding her work-related limitations. However, such an
opinion is not a prerequisite to the ALJ determining a claimant’s RFC. Cox v. Astrue, 495 F.3d 614
(8th Cir. 2007). The objective medical evidence in this case, including a mental consultative
examination, was ample and the ALJ’s decision was well-informed. See Martise v. Astrue, 641
F.3d 909, 926-27 (8th Cir. 2011) (ALJ not required to order additional medical exams unless the
existing medical record is insufficient). Under these circumstances, we find no error in the ALJ’s
reliance upon the record before him.
In summary, we find the ultimate decision of Berryhill was supported by substantial
evidence. We are mindful that the Court’s task is not to review the record and arrive at an
independent decision, nor is it to reverse if we find some evidence to support a different conclusion.
The test is whether substantial evidence supports the ALJ’s decision. See, e.g., Byes v. Astrue, 687
F.3d 913, 915 (8th Cir. 2012). This test is satisfied in this case.
IT IS THEREFORE ORDERED that the final decision of Berryhill is affirmed and Thayer’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 11th day of June, 2017.
UNITED STATES MAGISTRATE JUDGE
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