Cooper v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 13, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CIVIL NO. 12-2061
MICHAEL J. ASTRUE1, Commissioner
Social Security Administration
Plaintiff, Josie Cooper, 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 her 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 her current applications for DIB and SSI on July 21, 2009,
alleging an inability to work since November 11, 2006, due to scoliosis with rods in the back,
anxiety, and problems reading. (Tr. 117, 123, 155). An administrative hearing was held on June
Carolyn Colvin became the Acting Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn Colvin has been substituted for Commissioner Michael
J. Astrue as the Defendant in this suit.
29, 2010, at which Plaintiff appeared with counsel and testified. (Tr. 23-55). A vocational
expert and a medical expert also testified at this hearing.
By written decision dated October 27, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 16).
Specifically, the ALJ found Plaintiff had the following severe impairments: scoliosis. 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. 17). The ALJ found Plaintiff retained
the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
she would require a sit/stand option, and she should avoid all extremes of cold
as well as work around hazards including unprotected heights and dangerous
moving equipment. She is able to occasionally stoop, kneel, crouch and crawl,
but she is limited to no climbing and no balancing.
(Tr. 18). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a cuff folder, and a hot stone setter. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on February 16,
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. 5). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 11,12).
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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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 her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require her 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 her 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 her 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 her 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 argues the following issues in this appeal: 1) the ALJ erred in his severity
analysis at Step Two of the Sequential Evaluation in evaluating Plaintiff’s mental impairment;
2) the ALJ erred in assessing the credibility of Plaintiff’s subjective complaints; 3) the ALJ erred
in the RFC determination; and 4) the ALJ erred in failing to fully and fairly develop the record.
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 she 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 improperly found Plaintiff’s alleged anxiety to be a nonsevere impairment. In making this argument, Plaintiff points to a February of 2011 mental
evaluation, completed by Dr. Patricia Walz, that was submitted to the Appeals Council.2 (Tr.
In deciding that Plaintiff did not have a severe mental impairment, the ALJ pointed to the
medical evidence that revealed Plaintiff’s anxiety was considered to be stable with the use of
medication. (Tr. 233). The Court notes that impairments that are controllable or amenable to
treatment do not support a finding of disability. Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir.
Furthermore, while the ALJ found that Plaintiff’s alleged anxiety was non-severe, the
ALJ clearly stated that he considered all of Plaintiff’s impairments, including the impairments
that were found to be non-severe. (Tr. 15). 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
The Court notes the Court consider this evidence, as it was submitted to the Appeals Council and the Appeals Council
considered it before denying review. (Tr. 4). See Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
without regard to whether any such impairment, if considered separately, would be of sufficient
With regard to Dr. Walz’s evaluation completed in February of 2011, the Court notes that
Dr. Walz opined that Plaintiff could communicate and interact in a socially adequate manner;
that Plaintiff had adequate attention and concentration; that Plaintiff persisted well; and that
Plaintiff’s speed of information processing was average. While this assessment was not before
the ALJ, the Court notes that the vocational expert indicated that the job Plaintiff was found to
be able to perform was considered unskilled work, and Dr. Walz did not opine that Plaintiff was
unable to perform substantial gainful activity due to her alleged mental impairments.
Thus, the ALJ's finding that Plaintiff's alleged anxiety was not a “severe” impairment
does not constitute 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 her pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of her 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 Eighth Circuit has observed, “Our touchstone is that [a claimant’s] credibility
is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d at 966.
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. A review of the record revealed that in September of
2009, Plaintiff reported that she was able to help her children get ready for school; take her
children to and from school; take care of her personal needs; prepare simple meals daily for her
family; do household chores such as laundry and cleaning; watch television, and talk on the
telephone; and attend church twice a month. (Tr. 163-170).
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that
lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or
hospitals does not support plaintiff’s contention of financial hardship). Furthermore, the record
revealed that Plaintiff was able to find the funds to purchase cigarettes. (Tr. 217).
Based on the record as a whole, the Court finds there is substantial evidence to support
the ALJ’s credibility findings.
RFC Assessment and Treating and Examining 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
her 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 notes that in determining Plaintiff’s RFC, the ALJ specifically
discussed Plaintiff’s subjective complaints, and her medical records when he determined Plaintiff
could perform sedentary work with limitations. The ALJ also discussed the medical opinions
of treating and non-examining medical professionals, as well as the testimony of a medical
professional, 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). Based on the record
as a whole, the Court finds substantial evidence to support the ALJ’s RFC determination.
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).
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
Plaintiff's impairments did not preclude her from performing work as a cuff folder, and a hot
stone setter, during the relevant time period. 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 13th day of June, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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