Davis v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on June 2, 2014. (cnn)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION LAKESHIA DAVIS vs. PLAINTIFF Civil No. 1:13-cv-01041 CAROLYN COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Lakeshia Davis (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying her applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 7.1 Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter. 1. Background: Plaintiff’s applications for DIB and SSI were filed on August 19, 2009. (Tr. 11, 182-189). Plaintiff alleged she was disabled due to bone disease in right knee, back pain, and mental problems. (Tr. 229). Plaintiff alleged an onset date of June 2, 2009. (Tr. 229). These applications were denied initially and again upon reconsideration. (Tr. 11, 72-84). Thereafter, Plaintiff requested an 1 The docket numbers for this case are referenced by the designation “ECF. No.___” The transcript pages for this case are referenced by the designation “Tr.” 1 administrative hearing on her applications and this hearing request was granted. (Tr. 96). Plaintiff’s administrative hearing was held on June 25, 2011. (Tr. 45-67). Plaintiff was present and was represented by counsel, Mary Thomason, at this hearing. Id. Plaintiff, Vocational Expert (“VE”), Myrtle Johnson, and Medical Expert Dr. Murphy testified at this hearing. Id. At the time of this hearing, Plaintiff was thirty-seven (37) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had a twelfth grade education. (Tr. 47-48). On February 23, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s applications for DIB and SSI. (Tr. 11-25). In this decision, the ALJ determined Plaintiff had met the insured status of the Act through December 31, 2013. (Tr. 13, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since June 2, 2009. (Tr. 13, Finding 2). The ALJ determined Plaintiff had the severe impairment of patellofemoral syndrome of her right knee, history of early degenerative changes in her bilateral knees, obesity, depression, and posttraumatic stress disorder. (Tr. 13, Finding 3). The ALJ then determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 14, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC. (Tr. 15-24). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform sedentary work except only occasionally stoop, crouch, crawl, and kneel; limited to work where interpersonal contact was incidental to work performed; the complexity of tasks could be learned by demonstration or experience within a month, with few variables and little judgment; 2 and supervision required would be simple, direct, and concrete. (Tr. 15, Finding 5). The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 24, Finding 6). The ALJ found Plaintiff was unable to perform her PRW. Id. The ALJ, however, also determined there was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 2425, Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 62-66). Based upon that testimony, the ALJ determined Plaintiff retained the ability to perform other work such as assembler of small products with 4,000 such jobs in Arkansas and 203,000 such jobs in the nation, inspector with 1,100 such jobs in Arkansas and 68,000 such jobs in the nation, and machine operator with 4,000 such jobs in Arkansas and 500,000 such jobs in the nation. Id. Given this, the ALJ determined Plaintiff had not been under a disability as defined in the Act from June 2, 2009 through the date of his decision. (Tr. 25, Finding 11). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 5-6). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On April 22, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on April 26, 2013. ECF No. 7. Both Parties have filed appeal briefs. ECF Nos. 10, 11. This case is now ready for decision. 2. Applicable Law: In reviewing this case, this Court is required to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g) (2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). 3 As long as there is substantial evidence in the record that supports the Commissioner’s decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome or because the Court would have decided the case differently. See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). It is well established that a claimant for Social Security disability benefits has the burden of proving his or her disability by establishing a physical or mental disability that lasted at least one year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a “physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A). To determine whether the adult claimant suffers from a disability, the Commissioner uses the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work 4 experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003). 3. Discussion: Plaintiff brings the present appeal claiming the ALJ erred: (A) by not considering Plaintiff’s impairments in combination, and (B) in the Step 5 determination. ECF No. 10, Pgs. 8-13. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 11. A. Combination of Impairments Plaintiff argues the ALJ erred by failing to consider all of her impairments in combination. However, under the facts in the present case and after a thorough review of the ALJ’s opinion and the record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in combination. The Social Security Act requires the ALJ to consider the combined effect of all of the claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. 14, Finding 4) (emphasis added). The ALJ also found, “after consideration of the entire record,” the Plaintiff had the RFC to perform a limited range of sedentary 5 work. (Tr. 15, Finding 5). The ALJ went on to state Plaintiff’s RFC would not preclude her from performing other work that exists in significant numbers in the national economy. (Tr. 24, Finding 10). These statements are sufficient under Eighth Circuit precedent to establish that the ALJ properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly considered the combined effects of the plaintiff’s impairments). Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly considered Plaintiff’s impairments in combination. Plaintiff has alleged she suffers from a number of impairments. However, this Court is not required to find a claimant is disabled simply because he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92. Plaintiff also argues the ALJ should have included bipolar disorder as a severe impairment because the record shows a diagnosis of the condition. ECF No. 10, Pgs. 9-10. A claimant suffers from a severe impairment if that impairment is more than slight and if that impairment impacts the claimant’s ability to do his or her basic work activities. See Householder v. Bowen, 861 F.2d 191, 192 n.1 (8th Cir. 1988). The Supreme Court has also held that a claimant does not suffer from a severe impairment where the claimant only suffers from “slight abnormalities that do not significantly limit any ‘basic work activity.’” See Bowen v. Yuckert, 482 U.S. 137, 155 (1987) (O’Connor, S., concurring) (emphasis added); see also Brown v. Bowen, 827 F.2d 311, 311-12 (8th 6 Cir. 1987) (adopting Justice O’Connor’s language from Bowen v. Yuckert). Furthermore, the standard for determining whether a claimant suffers from a severe impairment is a low or de minimis standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (reversing the decision of the ALJ and holding that a diagnosis of borderline intellectual functioning should have been considered severe because that diagnosis was supported by sufficient medical evidence). If the ALJ errs by finding a severe impairment is not severe, the ALJ’s disability determination must be reversed and remanded. See Nicola, 480 F.3d at 887. In this matter, the record does not support a finding that Plaintiff’s alleged bi-polar disorder is a severe impairment. The ALJ specifically considered the evidence regarding Plaintiff’s alleged bipolar disorder and found the record did not support it as a severe impairment. (Tr. 17, 19, 21). As found by the ALJ, the medical evidence shows Plaintiff received a diagnosis of bipolar I disorder in May 2010 at Delta Counseling Services by a licensed social worker. (Tr. 17, 19, 21, 370-371, 425-326). However, the ALJ correctly noted a licensed social worker is not an acceptable medical source, and Plaintiff was never diagnosed with bipolar disorder by an acceptable medical source. (Tr. 21). Because the evidence does not contain any medical records indicating Plaintiff had a severe impairment of bipolar disorder, the ALJ did not err by not finding bipolar disorder as a severe impairment. B. Step 5 Determination At Step Five of a disability determination, the SSA has the burden of establishing that a claimant retains the ability to perform other work in the economy. See Snead v. Barnhart, 360 F.3d 838, 836 (8th Cir. 2004). The SSA may meet this burden by either applying the Medical-Vocational Guidelines (“Grids”) or by relying upon the testimony of a VE. See Cox v. Astrue, 495 F.3d 614, 7 621 (8th Cir. 2004) (finding the SSA’s denial of benefits was supported by substantial evidence where the VE’s testimony was based on a correctly-phrased hypothetical question); Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (finding the SSA’s denial of benefits was supported by substantial evidence where the ALJ applied the Grids). The SSA may not apply the Grids, and must hear testimony from a VE, where a claimant’s RFC is significantly diminished by a nonexertional limitation. See McGeorge v. Barnhart, 321 F.3d 766, 768-769 (8th Cir. 2003). If, however, the SSA properly determines a claimant’s RFC is not significantly diminished by a nonexertional limitation, then the SSA may rely exclusively upon the Grids and is not required to hear the testimony from a VE. See McGeorge, 321 F.3d at 768-769. In this matter, the ALJ heard testimony from a VE regarding Plaintiff’s ability to perform work in the national economy. It is generally accepted that VE testimony, in response to a hypothetical question, is substantial evidence if the hypothetical sets forth the credible impairments with reasonable precision. See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). It has further been established the ALJ must only include in the hypothetical those impairments which the ALJ actually finds credible, and not those which he rejects, assuming his findings are supported by substantial evidence. See Onstad v. Shalala, 999 F.2d 1232 (8th Cir. 1993). The ALJ found Plaintiff had the RFC to perform sedentary work with limitations. (Tr. 15, Finding 5). In response to a hypothetical question containing these limitations, the VE testified work existed in the national economy consistent with the limitations found by the ALJ. (Tr. 62-66). The ALJ found a significant number of jobs existed in the national economy which Plaintiff could perform. (Tr. 24-25, Finding 10). Relying on the VE testimony, the ALJ found Plaintiff was not under a disability as defined by the Act. (Tr. 25, Finding 11). In contesting the ALJ’s step five determination, Plaintiff argues the ALJ erred in finding her 8 not disabled because he relied on Grids in making his determination. ECF No. 10, Pgs. 9-12. Although the ALJ mentioned the Grids in his decision, he did not rely on the Grids in finding Plaintiff not disabled. The ALJ stated when a claimant has non-exertional limitations and cannot perform the full range of work, the Grids provide a framework for decision-making. (Tr. 24). The ALJ further went on to say while the Grids would direct a finding of “not disabled” for a claimant with an RFC with the full range of sedentary work, Plaintiff had additional limitations that eroded the sedentary occupational base and required the testimony of a vocational expert. (Tr. 24-25). Based on this, the ALJ called a vocational expert at the hearing and based his step five decision upon that expert’s testimony. (Tr. 25). Based upon these findings, I find the ALJ did not err in his Step 5 determination. 4. Conclusion: Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 2nd day of June 2014. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE 9

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