Barnes v. Social Security Administration
ORDER affirming the Commissioner's decision and dismissing the 2 Complaint filed by Freddie Barnes, Jr with prejudice. Signed by Judge James M. Moody on 6/6/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
FREDDIE BARNES, JR.
MICHAEL J. ASTRUE,
MEMORANDUM AND ORDER
decision of the Commissioner of the Social Security Administration
Supplemental Security Income, based on disability.
have submitted appeal briefs and the case is ready for decision.
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
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254,
257 (8th Cir. 1996).
In assessing the substantiality of the evidence, the Court
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
1382(a)(3)(A). A "’physical or mental impairment’ is an impairment
that results from anatomical, physiological, or psychological
§§ 423(d)(3); 1382c(a)(3)(D).
Plaintiff alleged that he was limited in his ability to work
by a bipolar disorder, paranoid schizophrenia, depression, knee
problems, high blood pressure and nervous problems. (Tr. 122) The
Commissioner found that he 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 Judge
(ALJ) concluded that Plaintiff had not been under a disability
within the meaning of the Social Security Act at any time through
October 26, 2009, the date of his decision.
12, 2011, 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.
complaint initiating this appeal.
Plaintiff then filed his
After consideration of the record as a whole, the Court finds
that the decision of the Commissioner is supported by substantial
Plaintiff was 41 years old at the time of the hearing.
He is a high school graduate.
certified as a nurse’s aide.
(Tr. 29, 127)
He also was
He has past relevant work
as a certified nurse’s aide, cook/cashier, stocker and cook.
23, 33-34, 51-52, 123-24, 150)
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
substantial gainful activity.
20 C.F.R. §§ 404.1520(a)(4)(i),
If the claimant is, benefits are denied,
regardless of medical condition, age, education or work experience.
Id. §§ 404.1520(b), 416.920(b).
Step 2 involves a determination of whether the claimant has an
impairment or combination of impairments which is “severe” and
If not, benefits are denied.
impairment significantly limits a claimant’s ability to perform
basic work activities.
Id. §§ 404.1520(c), 416.920(c).
duration requirement is met, benefits are awarded.
If the claimant does not meet or equal a Listing, then a
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), 416.920(a)(4)(iv).
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,
416.920(a)(4)(v). If so, benefits are denied; if not, benefits are
The ALJ found Plaintiff had not engaged in substantial gainful
activity since his alleged onset date.
Plaintiff had “severe” impairments, a mood disorder and substance
Plaintiff did not have an impairment or combination of impairments
that met or equaled a Listing.
He judged that Plaintiff’s
allegations regarding the intensity, persistence and limiting
effects of his symptoms were not fully credible.
The ALJ found that Plaintiff retained the residual functional
capacity to perform a full range of work at all exertional levels
but with the following nonexertional limitations:
moderate limitations in his ability to carry out detailed
instructions; maintain attention and concentration for
extended periods; ability to sustain an ordinary routine
without special supervision without being distract[ed] by
them; ability to complete a normal work day and work week
without interruptions from psychologically based symptoms
and to perform at a consistent pace without an
unreasonable number and length of rest periods; ability
to accept instructions and respond appropriately to
criticism from supervisors; respond appropriately to
change in the work setting; and ability to set realistic
goals or make plans independently of others; and is
restricted to unskilled work activity.
He then determined that Plaintiff was capable of returning to
his past relevant work as a stocker.
concluded that Plaintiff was not disabled.
Thus, the ALJ
Plaintiff contends Defendant failed to afford appropriate
weight to the opinion of his primary therapist, Misty Winters,
LMSW, regarding the severity of his impairments and how they
affected his ability to function.
(Plaintiff’s Brief 11–14)
“opinion” at issue are Ms. Winters’ ratings in answer to questions
Secondary to Mental Impairments, Including Pain, Fatigue, and
Hysterical Paralysis” which she completed March 17, 2009.
The ALJ noted her opinion, but gave it no weight: “The
residual functional capacity at Exhibit 10F is rejected because it
was not done by a doctor but by a social worker, which is
classified as other medical source.”
Plaintiff relies primarily on Sloan v. Astrue, 499 F.3d 883
(8th Cir. 2007) and the Social Security Ruling which it interprets,
SSR 06-03p, which clarifies how the Commissioner considers opinions
from sources who are not “acceptable medical sources”.1
parties agree that Ms. Winters was not an “acceptable medical
The Ruling sets out the factors to be applied in evaluating
the opinion of an individual who is not an “acceptable medical
How long the source has known and how frequently the
source has seen the individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant evidence
to support an opinion;
How well the source explains the opinion;
Whether the source has a speciality or area of expertise
related to the individual’s impairment(s) and
Any other factors that tend to support or refute the
Length of relationship:
Inspection of the transcript reveals
that Ms. Winters saw Plaintiff six times from August, 2008, to
At first glance there appear to have been more
“Acceptable medical sources” are licensed physicians,
licensed or certified psychologists, licensed optometrists (for
limited purposes), licensed podiatrists (for limited purposes) and
qualified speech-language pathologists (for limited purposes). 20
C.F.R. §§ 404.1513(a), 416.913(a) (2008).
These same factors apply to those who are “acceptable medical
sources” and “other sources. Social Security Ruling 06-03p *4.
therapy sessions, but there is some duplication of the record, for
instance, Tr. 245=246=281, 251=57, 250=255, 248=254.
Consistency with other evidence: Ms. Winters indicated on the
limitation of functioning, working in coordination or proximity to
others without being distracted by them, accepting instructions and
responding appropriately to criticism from supervisors and getting
exhibiting behavioral extremes.
Frederick N. Burt, M.D., a staff psychiatrist with Delta
Plaintiff in June, 2008.
He assessed many areas of
normal functioning, normal general information, normal short and
long-term memory and normal attention span.
bipolar disorder and prescribed lithium. (Tr. 233) When Plaintiff
saw Dr. Burt the following month, he indicated he was doing “very
well” since starting treatment.
His memory was good,
his general information was good, calculations were good and
attention was good.
His mood was neutral and his affect was
Charles M. Spellman, Ph.D., evaluated Plaintiff July 31, 2008.
(Tr. 207-11) He told Dr. Spellman that his treatment was “helping”
and he felt “he’s getting his life on track.”
Spellman noted his affect was appropriate, speech was good and
Defined on the questionnaire as “[f]rom twenty-one to thirtyfive percent or more of work time, the individual cannot usefully
perform or sustain the activity.” (Tr. 283)
thought processes were logical, relevant and goal directed.
Thought content was appropriate and he was alert and fully
The doctor noted he communicated intelligently and
effectively and could communicate in a socially adequate manner
although he did not like crowds; he could cope with the typical
mental/cognitive demands of work-like tasks.
Spellman noted depression, much of which resulted from the recent
death of his ex-wife.4
He could manage funds without
Walter Oglesby, M.D., another staff psychiatrist at Delta
Associates, saw Plaintiff January 20, 2009.
He had been off his medicine “for a while.”
complained of racing thoughts, irritable mood and depression; he
wanted new prescriptions. Id. Plaintiff returned in approximately
His racing thoughts did not bother him so
medications were adjusted.
determined that Plaintiff had the residual functional capacity was
It appears Ms. Winter’s opinion of Plaintiff’s limitations was
greater than those of others who treated Plaintiff or reviewed his
He recorded “bereavement” on Axis I rather than depression.
explains the opinion:
Ms. Winters supplied no evidence in support
of her opinions, although the questionnaire three times asks her to
laboratory findings and other factors as established by your
evaluation and test results.”
portions of the questionnaire blank.
She left those
There are no other factors which support her
completed by Ms. Winters, although admissible, are entitled to
little weight in the evaluation of disability.
E.g., Taylor v.
Chater, 118 F.3d 1274, 1279 (8th Cir. 1997); O’Leary v. Schweiker,
720 F.2d 1334, 1341 (8th Cir. 1983); see Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010)(ALJ properly discounted treating
physician’s opinion consisting of three checklist forms which cited
Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000)(discounting
illuminating examples, descriptions or conclusions).
Although it would have been preferable for the ALJ the address
Ms. Winters’ opinion, under the circumstances, his omission, if
error, was harmless.
See Arkansas v. Oklahoma, 503 U.S. 91, 109
n.13 (1992) (immaterial flaw by ALJ will not justify remand);
Hensley v. Barnhart, 352 F.3d 352, 357 (8th Cir. 2003) (ALJ’s
incorrect determination of claimant’s literacy harmless error where
result was same when correct Medical-Vocational Guidelines rule was
applied); Hall v. Bowen, 857 F.2d 1210, 1212 & n.2 (8th Cir.
1988)(same result even if ALJ understood the Listing).
Plaintiff also argues the ALJ erred by failing to properly
examine whether alcohol was a contributing factor material to the
determination of Plaintiff’s disability.
ALJ did not find Plaintiff disabled, the procedure to determine
whether alcohol was a contributing factor did not come into play.
The plain text of the relevant regulation requires
the ALJ first to determine whether Brueggemann is
disabled. 20 C.F.R. § 404.1535(a) ("If we find that you
are disabled and have medical evidence of your drug
addiction or alcoholism, we must determine whether your
drug addiction or alcoholism is a contributing factor
material to the determination of disability." (emphasis
The ALJ must reach this determination
initially, as the ALJ did in Fastner v. Barnhart, 324
F.3d 981, 986 (8th Cir. 2003), using the standard fivestep approach described in 20 C.F.R. § 404.1520 without
segregating out any effects that might be due to
substance use disorders. Ball v. Massanari, 254 F.3d
817, 821 (9th Cir. 2001).
The ALJ must base this
disability determination on substantial evidence of
Brueggemann's medical limitations without deductions for
the assumed effects of substance use disorders. The
inquiry here concerns strictly symptoms, not causes, and
the rules for how to weigh evidence of symptoms remain
well established. . . . .
If the gross total of a claimant's limitations,
including the effects of substance use disorders,
suffices to show disability, then the ALJ must next
consider which limitations would remain when the effects
of the substance use disorders are absent. Pettit v.
Apfel, 218 F.3d 901, 903 (8th Cir. 2000); 20 C.F.R. §
404.1535(b)(2). . . . .
Only after the ALJ has made an initial determination
that 1) Brueggemann is disabled, 2) determined that drug
or alcohol use is a concern, and 3) obtained substantial
evidence on the record showing what limitations would
remain in the absence of alcoholism or drug addiction,
may he then reach a conclusion on whether Brueggemann's
substance use disorders are a contributing factor
material to the determination of disability.
2003)(emphasis in original)(footnotes omitted).
Inside his final argument, Plaintiff asserts the ALJ failed to
properly evaluate his credibility because the decision fails to
refer to Social Security Ruling 96-7 or Polaski v. Heckler.5
Plaintiff’s argument lacks merit.
refer to SSR 96-7.6
ALJs in the Eighth Circuit.
841 (8th Cir. 2004).
The ALJ did specifically
Polaski sets forth requirements for
Randolph v. Barnhart, 386 F.3d 835,
The ALJ in this case was based in Louisiana,
a part of the Fifth Circuit.
to follow Polaski.
(Tr. 9, 12)
Thus, he was not bound
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., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996);
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
739 F.2d 1320 (8th Cir. 1984).
The ALJ cited Social Security Ruling 96-7p and 20 C.F.R.
§§ 404.1529 and 416.929. (Tr. 16) That Ruling tracks Polaski and
20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and elaborates on
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
IT IS SO ORDERED.
DATED this 6th day of June, 2012.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?