Townsend v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 7, 2013. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
PATRICK S. TOWNSEND, SR.
CIVIL NO. 12-2038
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Patrick S. Townsend, Sr., brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner's decision. See
42 U.S.C. § 405(g).
Plaintiff protectively filed his current applications for DIB and SSI on February 9, 2009,
alleging an inability to work since April 7, 2008,1 due to bipolar disorder, anxiety, depression,
knee surgeries, degenerative disc disease, a shoulder separation, a neck fusion, and breathing
At the administrative hearing held on April 9, 2010, Plaintiff through his counsel, amended his alleged onset date to
February 12, 2009. (Tr. 48).
problems. (Tr. 148, 168). An administrative video hearing was held on April 9, 2010, at which
Plaintiff appeared with counsel and testified. (Tr. 25-56).
By written decision dated August 27, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 15).
Specifically, the ALJ found Plaintiff had the following severe impairments: mood disorders, a
back disorder, status post cervical fusion, and status post shoulder separation. However, after
reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did not
meet or equal the level of severity of any impairment listed in the Listing of Impairments found
in Appendix I, Subpart P, Regulation No. 4. (Tr. 15). The ALJ found Plaintiff retained the
residual functional capacity (RFC) to:
lift and carry twenty pounds occasionally and ten pounds frequently. The
claimant can sit for about six hours during an eight-hour workday and can stand
and walk for about six hours during an eight-hour workday. The claimant can
occasionally climb, balance, stoop, kneel, crouch and crawl. He can occasionally
reach overhead. The claimant can frequently finger and handle. He is to avoid
concentrated exposures to dusts, fumes, gases, odors, poor ventilation, and
hazards such as unprotected heights and heavy machinery. He can understand,
remember and carry out simple routine and repetitive tasks. The claimant can
respond appropriately to supervisors, co-workers, and usual work situations but
should have only occasional contact with the general public.
(Tr. 17). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as an assembly worker, a janitor, and a laundry folder. (Tr. 23).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted, denied that request on January 6, 2012. (Tr. 1-4).
Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant
to the consent of the parties. (Doc. 8). Both parties have filed appeal briefs, and the case is now
ready for decision. (Docs. 10, 11).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “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 disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §§ 404.1520, 416.920. Only
if the final stage is reached does the fact finder consider the Plaintiff’s age, education, and work
experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C .F.R. §§ 404.1520, 416.920.
Plaintiff alleges the following issues on appeal: 1) the ALJ failed to fully and completely
develop the record; 2) the ALJ erred when determining Plaintiff’s severe impairments; 3) the
ALJ’s credibility finding was not adequately supported; 4) the ALJ did not appropriately analyze
the medical opinions; 5) the ALJ erred when making a RFC determination; and 6) that Plaintiff
cannot perform the jobs identified in Step Five.
Fully and Fairly Develop the Record:
After reviewing the entire record, the Court rejects Plaintiff’s contention that the ALJ
failed to fully and fairly develop the record. While an ALJ is required to develop the record fully
and fairly, see Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir.2000) (ALJ must order consultative
examination only when it is necessary for an informed decision), the record before the ALJ
contained the evidence required to make a full and informed decision regarding Plaintiff’s
capabilities during the relevant time period. See Strongson v. Barnhart, 361 F.3d 1066, 1071-72
(8th Cir.2004) (ALJ must develop record fully and fairly to ensure it includes evidence from
treating physician, or at least examining physician, addressing impairments at issue).
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing he suffers from a medically-severe impairment at
Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000).
Plaintiff argues that the ALJ failed to adequately address Plaintiff’s alleged panic
disorder, antisocial disorder, and right upper extremity impairment. The ALJ discussed
Plaintiff’s alleged impairments, and clearly stated that he considered all of Plaintiff’s
impairments, including the impairments that were found to be non-severe. (Tr. 14). See Swartz
v. Barnhart, 188 F. App'x 361, 368 (6th Cir.2006) (where ALJ finds at least one “severe”
impairment and proceeds to assess claimant's RFC based on all alleged impairments, any error
in failing to identify particular impairment as “severe” at step two is harmless); Elmore v. Astrue,
2012 WL 1085487 *12 (E.D. Mo. March 5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in
assessing RFC, ALJ must consider “all of [a claimant's] medically determinable impairments ...,
including ... impairments that are not ‘severe’ ”); § 416.923 (ALJ must “consider the combined
effect of all [the claimant's] impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity”). Thus, the ALJ's failure to classify
Plaintiff’s alleged panic disorder, antisocial disorder, and right upper extremity impairment as
severe is not reversible error.
Subjective Complaints and Credibility Analysis:
The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff's daily
activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may
not discount a claimant's subjective complaints solely because the medical evidence fails to
support them, an ALJ may discount those complaints where inconsistencies appear in the record
as a whole. Id. As the United States Court of Appeals for the Eighth Circuit observed, “Our
touchstone is that [a claimant's] credibility is primarily a matter for the ALJ to decide.” Edwards
v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003).
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in his brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. Based on the record as a whole, the Court finds there
is substantial evidence to support the ALJ’s credibility findings.
The ALJ’s RFC Determination and Medical Opinions:
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes medical
records, observations of treating physicians and others, and the claimant’s own descriptions of
his limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as pain
are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of
Appeals for the Eighth Circuit has held that a “claimant’s residual functional capacity is a
medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
“The [social security] regulations provide that a treating physician's opinion ... will be
granted ‘controlling weight,’ provided the opinion is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.2000) (citations
omitted). An ALJ may discount such an opinion if other medical assessments are supported by
superior medical evidence, or if the treating physician has offered inconsistent opinions. Id. at
1013. Whether the weight accorded the treating physician's opinion by the ALJ is great or small,
the ALJ must give good reasons for that weighting. Id. (citing 20 C.F.R. § 404.1527(d)(2))
The Court finds, based upon the well-stated reasons outlined in the Defendant’s brief,
that Plaintiff’s argument is without merit, and there was sufficient evidence for the ALJ to make
an informed decision. The Court further notes that in determining Plaintiff’s RFC, the ALJ
specifically discussed the relevant medical records, the medical opinions of examining and nonexamining medical professionals, and the opinions of “other source” professionals, and set forth
the reasons for the weight given to the opinions. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th
Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians”)(citations omitted); Prosch v. Apfel, 201 F.3d 1010 at 1012 (the ALJ
may reject the conclusions of any medical expert, whether hired by the claimant or the
government, if they are inconsistent with the record as a whole). Based on the record as a whole,
the Court finds substantial evidence to support the ALJ’s RFC determination for the relevant
Hypothetical Question to the Vocational Expert:
After thoroughly reviewing the hearing transcript along with the entire evidence of
record, the Court finds that the hypothetical the ALJ posed to the vocational expert fully set forth
the impairments which the ALJ accepted as true and which were supported by the record as a
whole. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that
the vocational expert's opinion constitutes substantial evidence supporting the ALJ's conclusion
that during the relevant time period Plaintiff's impairments did not preclude him from performing
work as an assembly worker, a janitor, and a laundry folder. Pickney v. Chater, 96 F.3d 294, 296
(8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision denying the Plaintiff benefits, and thus the decision
should be affirmed. The undersigned further finds that the Plaintiff’s Complaint should be
dismissed with prejudice.
DATED this 7th day of February, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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