Morse v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on May 15, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JACKIE D. MORSE
Civil No. 2:11-cv-02045
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Jackie Morse (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social
Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of
the Commissioner of the Social Security Administration (“SSA”) denying her application for
Disability Insurance Benefits (“DIB”) and a period of disability under Title II 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 postjudgment proceedings. ECF No. 5.1 Pursuant to this authority, the Court issues this memorandum
opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for DIB on November 4, 2008. (Tr. 7, 119).
Plaintiff alleged she was disabled due to arthritis, diabetes, bone spurs, high blood pressure, and a
lump in her breast. (Tr. 119). Plaintiff alleged an onset date of October 11, 2006. (Tr. 119). This
application was denied initially and again upon reconsideration. (Tr. 66-68, 72-73). Thereafter,
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.”
Plaintiff requested an administrative hearing on her application, and this hearing request was granted.
Plaintiff’s administrative hearing was held on February 11, 2010, in Fort Smith, Arkansas.
(Tr. 23-63). Plaintiff was present and was represented by counsel, Abby Rice, at this hearing. Id.
Plaintiff and Vocational Expert (“VE”) Dale Thomas, testified at this hearing. Id. At the time of
this hearing, Plaintiff was sixty-three (63) years old, which is defined as a “person of advanced age”
under 20 C.F.R. § 404.1563(e), and had a GED. (Tr. 26-27).
On June 4, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application for
DIB. (Tr. 7-14). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since October 11, 2006. (Tr. 9, Finding 2). The ALJ determined Plaintiff
had the severe impairment of diabetes mellitus, photosensitive skin eruption, osteoarthritis,
depression, anxiety, lateral epicondylitis, coronary artery disease, headaches, heel spurs, and
blepharitis. (Tr. 9, Finding 3). The ALJ also 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. 10, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 10-13, Finding 5). First, the ALJ 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 that she could not climb ladders, ropes, or scaffolds,
could have exposure to sunlight only intermittently and rarely, and could only occasionally balance,
stoop, kneel, crouch, crawl, and climb ramps or stairs. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 13, Finding 6). The ALJ
determined Plaintiff was able to perform her PRW as a dispatcher supervisor, secretary, and accounts
payable. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability,
as defined by the Act, from October 11, 2006 through the date of his decision. (Tr. 14, Finding 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 117). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On March 9, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on April 14, 2011. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 7, 8. 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).
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
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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 7. Specifically, Plaintiff claims the ALJ erred (1) in her
findings of severe impairments, (2) in failing to develop the record as to her RFC and, (3) in finding
her capable of performing her PRW. ECF No. 7, Pgs. 11-17. In response, the Defendant argues the
ALJ did not err in any of her findings. ECF No. 8.
A. Finding of Severe Impairments
Plaintiff argues the ALJ erred as it relates to her findings of severe impairments. ECF No.
7, Pgs. 11-12. The ALJ determined Plaintiff had the severe impairments of diabetes mellitus,
photosensitive skin eruption, osteoarthritis, depression, anxiety, lateral epicondylitis, coronary artery
disease, headaches, heel spurs, and blepharitis. (Tr. 9, Finding 3). The Plaintiff argues the ALJ erred
by finding her mental impairments of depression and anxiety were non-severe.
In determining whether a claimant’s impairment or impairments are of such severity that such
impairment or impairments could be the basis of eligibility for benefits, the Commissioner will
consider the combined effect of all the claimant’s impairments without regard to whether any such
impairment, if considered separately, would be of such sufficient severity. See 20 C.F.R. § 416.923.
If a medically severe combination of impairments is found, the combined impact of the impairments
will be considered throughout the disability determination process. Id. Furthermore, in assessing
RFC, the Commissioner will consider all of a claimant’s impairments, including the claimant’s
non-severe impairments. See 20 C.F.R. § 416.945(a)(2).
An impairment is not severe if it amounts to only a slight abnormality that would not
significantly limit the claimant’s physical or mental ability to do basic work activities. See 20 C.F.R.
§ 404.1521(a). Proof of a disabling impairment must be supported by at least some acceptable
medical evidence. See Marolf v. Sullivan, 981 F.2d 976, 978 (8th Cir. 1992). It is the claimant’s
burden to establish that her impairment or combination of impairments are severe. Kirby v. Astrue,
500 F.3d 705, 707 (8th Cir. 2007).
In this matter, The ALJ found Plaintiff’s claims of depression and anxiety were non-severe
impairments. (Tr. 9-10). In making this finding, the ALJ noted that on March 19, 2009, Dr. Terry
L. Efird performed a consultative mental examination of Plaintiff. (Tr. 254-258). Plaintiff
complained of mild struggles with memory, forgetfulness, and concentration. (Tr. 254). Plaintiff
also indicated she was experiencing anxiety attacks. (Tr. 254). Plaintiff characterized her mood as
generally good. (Tr. 254). Dr. Efird noted no outstanding problems with Plaintiff’s concentration.
(Tr. 254). Fianlly, Plaintiff denied a history of psychiatric treatment. (Tr. 255). Dr. Efird diagnosed
Plaintiff with anxiety disorder, not otherwise specified. (Tr. 256). Plaintiff stated she applied for
disability primarily due to physical reasons. (Tr. 254).
With regards to adaptive functioning, Dr. Efird found Plaintiff endorsed the ability to drive
unfamiliar routes, shop independently, and to perform activities of daily living in a satisfactorily
manner. (Tr. 257). Plaintiff also reported she visited with family at times and saw her husband on
a daily basis. (Tr. 257). Dr. Efird indicated Plaintiff communicated and interacted in a reasonably
socially-adequate manner and appeared to have reasonable social skills. (Tr. 257). Plaintiff also
communicated in a reasonably intelligible and effective manner and had adequate communication
skills. (Tr. 257).
On March 27, 2009, Dr. Kay M. Gale, completed a Psychiatric Review Technique form on
Plaintiff. (Tr. 259-272). Dr. Gale found Plaintiff had only mild limitations in her ability to perform
activities of daily living; maintaining social functioning; and maintaining concentration, persistence,
and pace. (Tr. 269). Dr. Gale indicated Plaintiff had no history of mental health treatment, and that
although a recent diagnosis of anxiety disorder, Plaintiff had no serious functional limitation. (Tr.
271). Dr. Gale was of the opinion that Plaintiff had no severe mental impairments. (Tr. 271).
As a result of these findings, substantial evidence supports the ALJ’s finding that Plaintiff’s
depression and anxiety were non-severe impairments.
B. Development of the Record
Plaintiff argues the ALJ should have re-contacted Plaintiff’s treating physician Dr. Charles
Jennings as the failure to do so was error. ECF No. 7, Pgs. 12-14. The ALJ has the duty to fully
and fairly develop the record, even where the Plaintiff is represented by counsel. If a physician’s
report of a claimant’s limitations are stated only generally, the ALJ should ask the physician to
clarify and explain the stated limitations. See Vaughn v. Heckler, 741 F. 2d 177,179 (8th Cir. 1984).
Furthermore, the ALJ is required to order medical examinations and tests if the medical records
presented do not provide sufficient medical evidence to determine the nature and extent of a
claimant’s limitations and impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994).
The ALJ must develop the record until the evidence is sufficiently clear to make a fair
determination as to whether the claimant is disabled. See Landess v. Weinberger, 490 F. 2d 1187,
1189 (8th Cir. 1974). In addition, a claimant must show not only that the ALJ failed to fully and
fairly develop the record, but he must also show that he was prejudiced or treated unfairly by the
ALJ's failure. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993).
Initially the Court notes Plaintiff has failed to establish that the medical records presented
did not provide sufficient medical evidence to determine the nature and extent of her limitations and
impairments. See Barrett v. Shalala, 38 F. 3d 1019, 1023 (8th Cir. 1994). An ALJ is not required
to order a consultative evaluation of every alleged impairment; he simply has the authority to do so
if the existing medical sources do not contain sufficient evidence to make an informed decision. See
Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989).
In this matter the ALJ did not have a duty to re-contact Dr. Jennings for clarification of his
opinion in the present case. While an ALJ has an independent duty to develop the record in a Social
Security disability case, the ALJ is not required to “seek additional clarifying statements from a
treating physician unless a crucial issue is underdeveloped.” See Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004). In this matter, the ALJ did not find Dr. Jennings’ record inadequate, unclear,
or incomplete; nor did she find he used unacceptable clinical and laboratory techniques. (Tr. 12).
Instead, the ALJ discounted Dr. Jennings’ opinion because it was inconsistent with and unsupported
by the other substantial evidence of record. (Tr. 12).
Social Security Regulations and case law state a treating physician's opinion will be granted
“controlling weight,” provided it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000)(citing 20 C.F.R. §
404.1527(d)(2)). An ALJ is required to give good reasons for the particular weight given to a
treating physician’s evaluation. See Prosch, 201 F.3d at1013 (citing 20 C.F.R § 404.1527(d)(2), and
SSR 96-2p). An ALJ may disregard the opinion of a treating physician only where other medical
assessments “are supported by better or more thorough medical evidence,” or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions. Id. at 1013
(quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), and Cruze v. Chater, 85 F.3d 1320,
1324-25 (8th Cir. 1996)).
In this matter, the ALJ did not give significant weight to the RFC opinions of Dr. Jennings
and she set forth several reasons in her analysis for doing so. (Tr. 12-13). The ALJ noted, Dr.
Jennings RFC opinion was internally inconsistent, and conflicted with other objective medical
evidence and non-medical evidence of record. (Tr. 12). The ALJ also found Dr. Jennings failed to
articulate what particular impairment or combination of impairments caused Plaintiff to be so
limited, and he failed to state what testing, if any, allegedly supported his opinion. (Tr. 12).
The ALJ satisfied her duty to fully and fairly develop the record in this matter and gave
proper treatment to the opinions of treating physician Dr. Jennings.
C. Past Relevant Work
Plaintiff claims substantial evidence does not support the ALJ’s finding that Plaintiff could
perform her PRW. ECF No. 7, Pgs. 14-15. Defendant claims substantial evidence supports the
ALJ’s decision that Plaintiff has the RFC to perform her PRW. ECF No. 8, Pgs. 15-16. This Court
finds the ALJ’s determination that Plaintiff has the RFC to perform her PRW is supported by
substantial evidence and in making that determination, the ALJ provided a sufficient basis for her
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should also consider “‘all the
evidence in the record’ in determining the RFC, including ‘the medical records, observations of
treating physicians and others, and an individual’s own description of his limitations.’” Stormo v.
Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th
Cir. 2002)). The plaintiff has the burden of producing documents to support his or her claimed RFC.
See Cox, 160 F.3d at1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The ALJ, however, bears the primary responsibility for making the RFC determination and
for ensuring there is “some medical evidence” regarding the claimant’s “ability to function in the
workplace” that supports its RFC determination. Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir.
2001). Furthermore, this Court is required to affirm the ALJ’s RFC determination if that
determination is supported by substantial evidence on the record as a whole. See McKinney v. Apfel,
228 F.3d 860, 862 (8th Cir. 2000).
The ALJ found Plaintiff retained the RFC to perform sedentary work except that she could
not climb ladders, ropes, or scaffolds, could have exposure to sunlight only intermittently and rarely,
and could only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs. (Tr. 10,
Finding 5). The ALJ went on to find Plaintiff’s PRW as a dispatcher supervisor, accounts payable,
and secretary did not require performance of work-related activities precluded by the Plaintiff’s RFC.
(Tr. 13). As a result, the ALJ determined Plaintiff had not been under a disability at anytime through
the date of his decision. (Tr. 14).
Plaintiff argues the ALJ erred in finding her capable of performing her PRW, which required
the ability to perform skilled and semi-skilled work. ECF No. 7, Pgs. 11-12. However, as set out
above, the ALJ properly considered Plaintiff’s mental impairments of depression and anxiety and
determined they did not cause more than minimal limitation in Plaintiff’s ability to perform basic
mental work activities, and therefore, were not severe. (Tr. 9).
There is substantial evidence of record to support the ALJ’s RFC finding and conclusion,
based upon proper VE testimony, that Plaintiff remains capable of performing her PRW as a
dispatcher supervisor, accounts payable, and secretary.
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 15th day of May 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE 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?