Barnes v. Social Security Administration

Filing 11

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.

Plaintiff

v.

5:11CV00147 JMM

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration,

Defendant

MEMORANDUM AND ORDER
Plaintiff,

Freddie

Barnes,

Jr.,

has

appealed

the

final

decision of the Commissioner of the Social Security Administration
to

deny

his

claim

for

Disability

Insurance

benefits

Supplemental Security Income, based on disability.

and

Both parties

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
(8th

Cir.

1997);

see

also

42

U.S.C.

§§

405(g),

1383(c)(3).

Substantial 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 Cir. 1996).
In assessing the substantiality of the evidence, the Court
must

consider

evidence

that

detracts

from

the

Commissioner's

decision as well as evidence that supports it; the Court may not,

however,

reverse

the

Commissioner's

decision

merely

because

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);

1382(a)(3)(A). A "’physical or mental impairment’ is an impairment
that results from anatomical, physiological, or psychological
abnormalities

which

clinical

laboratory

and

are

demonstrable
diagnostic

by

medically

techniques."

acceptable
42

U.S.C.

§§ 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
evidence.
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
2

October 26, 2009, the date of his decision.

(Tr. 23-24)

On April

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.

(Tr. 1-3)

complaint initiating this appeal.

Plaintiff then filed his

(Docket #2)

After consideration of the record as a whole, the Court finds
that the decision of the Commissioner is supported by substantial
evidence.
Plaintiff was 41 years old at the time of the hearing.
29)

He is a high school graduate.

certified as a nurse’s aide.

(Tr. 29, 127)

(Tr. 127)

(Tr.

He also was

He has past relevant work

as a certified nurse’s aide, cook/cashier, stocker and cook.

(Tr.

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.
416.920(a)(4)(i) (2008).

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
meets

the

duration

416.920(a)(4)(ii).

requirement.

Id.

§§

404.1520(a)(4)(ii),

If not, benefits are denied.

Id.

A “severe”

impairment significantly limits a claimant’s ability to perform
basic work activities.

Id. §§ 404.1520(c), 416.920(c).
3

Step

3

involves

impairment(s)
§§

meets

a
or

404.1520(a)(4)(iii),

determination
equals

a

of

whether

severe

impairment.

listed

the

Id.

416.920(a)(4)(iii).

If

so,

duration requirement is met, benefits are awarded.

and

the

Id.

If the claimant does not meet or equal a Listing, then a
residual
§§

functional

404.1520(a)(4),

capacity

assessment

416.920(a)(4).

is

This

made.

residual

capacity assessment is utilized at Steps 4 and 5.

Id.

functional

Id.

Step 4 involves a determination of whether the claimant has
sufficient residual functional capacity to perform past relevant
work.

Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

benefits are denied.

If so,

Id.

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),

416.920(a)(4)(v). If so, benefits are denied; if not, benefits are
awarded.

Id.

The ALJ found Plaintiff had not engaged in substantial gainful
activity since his alleged onset date.

(Tr. 14)

He found

Plaintiff had “severe” impairments, a mood disorder and substance
addiction/dependence

disorder

(alcohol).

Id.

He

determined

Plaintiff did not have an impairment or combination of impairments
that met or equaled a Listing.

Id.

He judged that Plaintiff’s

allegations regarding the intensity, persistence and limiting
effects of his symptoms were not fully credible.

(Tr. 17)

The ALJ found that Plaintiff retained the residual functional
4

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.
(Tr. 15)
He then determined that Plaintiff was capable of returning to
his past relevant work as a stocker.

(Tr. 23)

concluded that Plaintiff was not disabled.

Thus, the ALJ

Id.

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)

The

“opinion” at issue are Ms. Winters’ ratings in answer to questions
on

a

pre-printed

form

entitled

“Residual

Functional

Capacity

Secondary to Mental Impairments, Including Pain, Fatigue, and
Hysterical Paralysis” which she completed March 17, 2009.
283-86)

(Tr.

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.”

(Tr. 22)

Plaintiff relies primarily on Sloan v. Astrue, 499 F.3d 883
5

(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

The

parties agree that Ms. Winters was not an “acceptable medical
source.”
The Ruling sets out the factors to be applied in evaluating
the opinion of an individual who is not an “acceptable medical
source:2
1)

How long the source has known and how frequently the

source has seen the individual;
2)

How consistent the opinion is with other evidence;

3)

The degree to which the source presents relevant evidence

to support an opinion;
4)

How well the source explains the opinion;

5)

Whether the source has a speciality or area of expertise

related to the individual’s impairment(s) and
6)
opinion.

Any other factors that tend to support or refute the
Id. *4-5)

Length of relationship:

Inspection of the transcript reveals

that Ms. Winters saw Plaintiff six times from August, 2008, to
February, 2009.

At first glance there appear to have been more

1

“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).
2

These same factors apply to those who are “acceptable medical
sources” and “other sources. Social Security Ruling 06-03p *4.
6

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
questionnaire

that

Plaintiff

had

three

areas

of

“marked”3

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
along

with

coworkers

or

peers

exhibiting behavioral extremes.

without

distracting

them

or

(Tr. 284-85)

Frederick N. Burt, M.D., a staff psychiatrist with Delta
Counseling

Associates

Plaintiff in June, 2008.

(where

Ms.

Winters

(Tr. 233-34)

worked)

evaluated

He assessed many areas of

normal functioning, normal general information, normal short and
long-term memory and normal attention span.

Id.

He diagnosed

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.

(Tr. 236)

His memory was good,

his general information was good, calculations were good and
attention was good.
full.

Id.

His mood was neutral and his affect was

Id.
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.”

(Tr. 207)

Dr.

Spellman noted his affect was appropriate, speech was good and
3

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)
7

thought processes were logical, relevant and goal directed.
208)

(Tr.

Thought content was appropriate and he was alert and fully

oriented.

Id.

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.

(Tr. 210)

Dr.

Spellman noted depression, much of which resulted from the recent
death of his ex-wife.4
assistance.

Id.

He could manage funds without

Id.

Walter Oglesby, M.D., another staff psychiatrist at Delta
Counseling

Associates, saw Plaintiff January 20, 2009.

He had been off his medicine “for a while.”

(Tr. 249)

(Tr. 249)

He

complained of racing thoughts, irritable mood and depression; he
wanted new prescriptions. Id. Plaintiff returned in approximately
one month.
much

during

(Tr. 247)
the

His racing thoughts did not bother him so

day;

his

medications were adjusted.
Winston
reviewed

Brown,

records

limitation,

but

M.D.,

and
no

irritable

mood

had

subsided.

His

Id.
a

state

concluded
“marked”

agency

Plaintiff

limitation

medical
had
of

consultant,

some

moderate

functioning;

he

determined that Plaintiff had the residual functional capacity was
unskilled work.

(Tr. 214)

It appears Ms. Winter’s opinion of Plaintiff’s limitations was
greater than those of others who treated Plaintiff or reviewed his

4

He recorded “bereavement” on Axis I rather than depression.
(Tr. 210)
8

records.
Evidence

that

supports

explains the opinion:

opinion

and

how

well

the

source

Ms. Winters supplied no evidence in support

of her opinions, although the questionnaire three times asks her to
“Identify

the

supporting

diagnoses,

medical

signs,

symptoms,

laboratory findings and other factors as established by your
evaluation and test results.”

(Tr. 284-85)

portions of the questionnaire blank.
Other factors:

She left those

Id.

There are no other factors which support her

opinion.
Residual

functional

capacity

checklists

such

as

the

one

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
no

medical

evidence

and

provided

little

to

no

elaboration);

Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000)(discounting
treating

physician’s

two

pages

of

checked

boxes

devoid

of

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
9

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.

(Br. 15-18)

Since the

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
added)).
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,
10

may he then reach a conclusion on whether Brueggemann's
substance use disorders are a contributing factor
material to the determination of disability.
Brueggemann

v.

Barnhart

348

F.3d

689,

694-95

(8th

Cir.

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
17)

Plaintiff’s argument lacks merit.

refer to SSR 96-7.6

(Tr. 16)

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.

(Br.

(Tr. 9, 12)

Thus, he was not bound

Id.

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
the ALJ.

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).

5

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
them.
6

11

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.

Richardson v.

Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v.
Barnhart, 372 F.3d 946, 950 (8th Cir. 2004).

The Commissioner's

decision is not based on legal error.
THEREFORE, the Court hereby affirms the final determination of
the

Commissioner

and

dismisses

Plaintiff's

complaint

with

prejudice.
IT IS SO ORDERED.
DATED this 6th day of June, 2012.

UNITED STATES DISTRICT JUDGE

12