Johnson v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER affirming the final determination of the Commissioner and dismissing Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 12/22/08. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION F R E D E R I C K JOHNSON v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration 5 :0 7 C V 0 0 2 8 8 -B D P L A IN T IF F

DEFENDANT

M E M O R A N D U M OPINION AND ORDER P la in tif f , Frederick Johnson, has appealed the final decision of the Commissioner of th e Social Security Administration denying his claim for Disability Insurance benefits and S u p p le m e n ta l Security Income, based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision. T h e 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. Long v. C h a te r, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial ev iden ce 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 2 5 4 , 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d etracts from the Commissioner's decision as well as evidence that supports it; the Court m a y not reverse the Commissioner's decision, however, merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). " D is a b ility" is the "inability to engage in any substantial gainful activity by reason of a n y 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 th a n 12 months." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment" is "an im p a irm e n t that results from anatomical, physiological, or psychological abnormalities w h ich are demonstrable by medically acceptable clinical and laboratory diagnostic tech n iqu es. " 42 U.S.C. § 423(d)(3). P lain tiff alleged that he was limited in his ability to work by nerve damage in his sp ine and both hips, 25% usage of his left arm and limited use of his right hand. (Tr. 106) The Commissioner found that he was not disabled within the meaning of the Social Security A c t. The only issue before this Court is whether the Commissioner's decision that Plaintiff w a s not disabled within the meaning of the Act is supported by substantial record evidence. A f te r conducting an administrative hearing, the Administrative Law Judge 1 ("ALJ") c o n c lu d e d that Plaintiff had not been under a disability within the meaning of the Social S e c u rity Act at any time through June 29, 2006, the date of his decision. (Tr. 27) On S e p te m b e r 14, 2007, the Appeals Council received and considered additional evidence, but d e n ie d Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the f in a l decision of the Commissioner. (Tr. 7-9) Plaintiff then filed his complaint initiating th is appeal. (Docket entry # 2) A f te r consideration of the record as a whole, the Court finds that the decision of the C o m m is s io n e r is supported by substantial evidence. P la in tif f was 49 years old at the time of the hearing. (Tr. 338) He is a high school g ra d u a te (Tr. 12, 76, 93, 102, 338), and has past relevant work as a cook, fence installer and c o n stru c tio n laborer. (Tr. 19, 78-84)

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The Hon. David J. Manley. 2

T h e ALJ considered Plaintiff's impairments by way of the required five-step s e q u e n tia l evaluation process. The first step involves a determination of whether the claim an t is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 4 1 6 .9 2 0 (a )(4 )(i) (2006). If the claimant is, benefits are denied, regardless of medical c o n d itio n , age, education or work experience. Id. at §§ 404.1520(b); 416.920(b). S te p 2 involves a determination of whether the claimant has an impairment or c o m b in a tio n of impairments which is "severe" and meets the duration requirement. Id. at § § 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If not, benefits are denied. Id. A "severe" im p a irm e n t significantly limits a claimant's ability to perform basic work activities. Id. at § § 404.1520(c); 416.920(c). S tep 3 involves a determination of whether the severe impairment(s) meets or equals a listed impairment. Id., §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If so, and the duration re q u ire m e n t is met, benefits are awarded. Id. If the claimant does not meet or equal a Listing, then a residual functional capacity a s s e s s m e n t is made. Id., §§ 404.1520(a)(4); 416.920(a)(4). This residual functional c a p a c ity assessment is utilized at Steps 4 and 5. Id. S te p 4 involves a determination of whether the claimant has sufficient residual f u n c tio n a l capacity to perform past relevant work. Id., §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )( 4 )( iv ). If so, benefits are denied. Id. S te p 5 involves a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given claimant's age, education and work experience. Id., § § 404.1520(a)(4)(v); 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are a w a rd e d . Id.

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T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since his a lleg e d onset date.2 (Tr. 19) He found that Plaintiff had a "severe" impairment, d e g e n era tiv e disk disease, but that Plaintiff did not have an impairment or combination of im p a irm e n ts that met or equaled a Listing. (Tr. 24) He judged that Plaintiff's allegations re g a rd in g his impairments and their impact on his ability to work were not entirely credible. (Tr. 25) T h e ALJ found that Plaintiff retained the residual functional capacity for light work th a t did not require more than occasional stooping. Id. Based in part on the testimony of a v o ca tio n al expert, the ALJ found that Plaintiff's past relevant work as a cook did not require th e performance of work activity precluded by his residual functional capacity; he found that P la in tif f could return to that past relevant work. (Tr. 25-26) Consequently, the ALJ c o n c lu d e d that Plaintiff was not disabled. (Tr. 26) P la in tif f contends that the ALJ's residual functional capacity determination is not su p p o rte d by substantial evidence. (Br. 12-15) The ALJ must determine the claimant's r e sid u a l functional capacity based on all relevant evidence, including medical records, o b se rv a tio n s of treating physicians and others, and claimant's own descriptions of his lim ita tio n s . Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005); Baldwin v. Barnhart, 349 F .3 d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Before determining a claimant's residual functional capacity, the ALJ must first evaluate the c la im a n t's credibility. Tellez v. Barnhart, 403 F.3d at 957; Pearsall v. Massanari, 274 F.3d a t 1218.

The ALJ noted that Plaintiff's earnings record showed earnings of $1900.57 in 2001 a n d $7757.63 in 2002. (Tr. 19) In order to avoid delay, and because he ultimately found Plaintiff not disabled, the ALJ deemed that there was no substantial gainful activity after the alleged onset, January 31, 2001. Id. However, he noted that further investigation of that work might become necessary. Id. 4

2

A s the ALJ noted, Plaintiff made many conflicting reports about the severity of his s ym p to m s and limitations, his work history, and his educational history. (Tr. 21) In a D is a b ility Supplemental Interview Outline dated September 19, 2002 (Tr. 77), Plaintiff in d ic a te d that he groomed without assistance; did laundry and dishes, changed sheets and iro n e d , repaired his car and washed his car; he shopped for groceries and clothes and c o m p l e te d postal and banking errands (Tr. 72); he prepared meals, including sandwiches, f ro z e n dinners, meats and vegetables; paid bills and counted change; drove, including u n f a m ilia r routes, and used public transportation; attended church, watched television and re a d (Tr. 73). In another Disability Supplemental Interview Outline dated September 3, 2 0 0 3 (Tr. 65), Plaintiff indicated that he groomed without assistance, although it took him m u c h longer and he often had to stop and rest; the only thing that he did around the house w as to take out the trash; he shopped for clothes and completed postal errands (Tr. 61); p re p a re d meals, including sandwiches, frozen dinners and meats; paid bills and counted c h a n g e ; walked for exercise; he watched television; but he did not drive (Tr. 62). On S e p te m b e r 22, 2003, he told an examiner he washed dishes and kept his room straightened u p , but that he did not cook or do laundry. (Tr. 184) In November of 2005, he told an e x a m in e r that he helped his sister with housekeeping, cooking and laundry and went with h e r to shop for groceries. (Tr. 244) P la in tif f contended that he became unable to work January 31, 2001. (Tr. 52, 91) He te stif ie d that he last worked in 2000. (Tr. 350) On his Work History Report, he indicated th a t he worked as a cook at Rally's from January through April of 2002. (Tr. 78) He then w o rk e d for a fence company from April to August of 2002. Id. He told a psychologist that h e had worked until August of 2002. (Tr. 182) On September 18, 2002, a Social Security e m p lo ye e telephoned him, but was informed that he was at work. (Tr. 89) As earlier noted, h e reported earnings of $7757.63 in 2002 from three different employers. (Tr. 19, 55-56) 5

P la in tif f complains that the residual functional capacity assessment did not include a n y limitations associated with his borderline intellectual functioning. (Br. 14-15) The ALJ c o n sid e re d the contention that Plaintiff suffered from borderline intellectual functioning, but rejected that in favor of low average intelligence based on previous IQ testing, Plaintiff's w o rk history of skilled jobs, including team leader in the National Guard, cook and m ec h an i c, and his good communications skills. (Tr. 21) Plaintiff's argument seeks to place the burden of proof on the Commissioner. It is the c la im a n t's burden, and not the Social Security Commissioner's burden, to prove the c la im a n t's residual functional capacity. Goff v. Barnhart, 421 F.3d 785,790 (8th Cir. 2005); E ic h e l b e r g e r v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Masterson v. Barnhart, 383 F .3 d 731, 737 (8th Cir. 2004); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Young v. Apfel, 221 F.3d 1065, 1 0 6 9 n.5 (8th Cir. 2000); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). Next, Plaintiff argues that the Commissioner should have reversed or remanded based u p o n new and material evidence submitted to the Appeals Council.3 (Br. 15-16) The A p p e a ls Council considered that evidence. "In looking at your case, we considered the re a so n s you disagree with the decision and the additional evidence listed on the enclosed O rde r of the Appeals Council." (Tr. 7)

Some of the "new" evidence existed prior to the administrative hearing. (Tr. 257-60, 2 6 8 ) (Pages 257-60 consist of two copies of two pages of evidence from 2004.) The rest appears to have been created after the administrative hearing, but well before the date of the ALJ's decision. (Tr. 269-332) It would seem that the better practice would be to submit such evidence to the ALJ before he makes his decision, rather than submitting it to the Appeals Council afterwards. 6

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W h e n new and material evidence is submitted to the Appeals Council, "[t]he Appeals Council shall evaluate the entire record including th e new and material evidence submitted if it relates to the p e rio d on or before the date of the administrative law judge h e a rin g decision. It will then review the case if it finds that the a d m in istra tiv e law judge's action, findings, or conclusion is c o n tra ry to the weight of the evidence currently of record." 20 C.F.R. § 404.970(b). The newly submitted evidence is to become part of w h a t we will loosely describe here as the "administrative record," even though th e evidence was not originally included in the ALJ's record. Browning v. S u lliv a n , 958 F.2d 817, 823 n. 4 (8th Cir. 1992). If the Appeals Council does n o t consider the new evidence, a reviewing court may remand the case to the A p p e a ls Council if the evidence is new and material. See Williams v. Sullivan, 9 0 5 F.2d 214, 217 (8th Cir. 1990). If, as here, the Appeals Council considers th e new evidence but declines to review the case, we review the ALJ's d e c is io n and determine whether there is substantial evidence in the a d m i n is tra tiv e record, which now includes the new evidence, to support the A L J 's decision. Browning, 958 F.2d at 823. Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992)(footnote omitted). Substantial e v id e n c e supported the Commissioner's decision that Plaintiff was not disabled. N e x t, Plaintiff argues that the ALJ erred in not following the "slight abnormality" s ta n d a rd in determining that his borderline intellectual functioning was not a "severe" im p a irm e n t at Step 2 of the sequential evaluation process. (Br. 17-18) The ALJ followed th e regulations. (Tr. 19-24) Plaintiff places undue emphasis on the distinction between im p a irm e n ts that are "severe" and those that are not. Once a claimant gets past the Step 2 th re sh o ld of having a "severe" impairment, the ALJ considers all impairments, including th o s e that are less than "severe," in determining the claimant's residual functional capacity. 20 C.F.R. §§ 404.1545(e); 416.945(e) (2006); Social Security Ruling 96-8p, at 5. The ALJ cited and utilized the correct standard for determining whether Plaintiff's impairments were " se v e re ." (Tr. 19-20) Plaintiff's point is not well taken. F in a lly, Plaintiff argues that the ALJ improperly applied the Medical-Vocational G u id e lin e s to determine that he was not disabled. (Br. 18-19) The ALJ utilized the 7

M e d ic a l-V o c a tio n a l Guidelines only as part of an alternative determination. (Tr. 26) He f o u n d , at Step 4 of the sequential evaluation process, that Plaintiff could return to his past re le v a n t work as a cook. (Tr. 25-26) Plaintiff does not contend that the Step 4 d e te rm in a tio n was erroneous. Therefore, the error, if any, of alternatively utilizing the M e d ic a l-V o c a tio n a l Guidelines was harmless. See Arkansas v. Oklahoma, 503 U.S. 91, 109 n .1 3 (1992) (immaterial flaw by ALJ will not justify remand); Hall v. Bowen, 857 F.2d 1 2 1 0 , 1212 & n.2 (8th Cir. 1988)(same result even if ALJ understood the Listing). It is not the task of this Court to review the evidence and make an independent d e c is io n . Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on th e record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F .3 d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, the tra n sc rip t of the hearing and the medical and other evidence. There is ample evidence on the re c o rd as a whole that "a reasonable mind might accept as adequate to support [the] c o n c lu s io n " of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also R e u t te r ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d ec isio n is not based on legal error. T H E R E F O R E , the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED, this 22nd day of December, 2008.

___________________________________ UNITED STATES MAGISTRATE JUDGE

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