Burkett v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 26, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Shirlee Burkett, 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 claim for supplemental security income (SSI) under the provisions
of Title 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 application for SSI on August 31, 2009, alleging an
inability to work due to “Post traumatic depression.” (Tr. 148-152, 159). An administrative
hearing was held on November 22, 2010, at which Plaintiff and her husband appeared with
counsel and testified. (Tr. 46-71).
By written decision dated January 27, 2011, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - back disorder, post-traumatic stress
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
disorder and anxiety-related disorder. (Tr. 34). 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. 34). The ALJ found Plaintiff retained the residual functional capacity
perform light work as defined in 20 CFR 416.967(b). The claimant has
the RFC to lift and carry 20 pounds occasionally and 10 pounds
frequently. The claimant can sit for about 6 hours during an eight-hour
workday and can stand and walk for about 6 hours during an eight-hour
workday. The claimant can occasionally climb, balance, stoop, kneel,
crouch and crawl. The Claimant can respond appropriately to supervisors,
co-workers and usual work situations, but have no contact with the
general public. The claimant can perform low stress work, defined as
occasional decision-making and occasional changes in workplace
(Tr. 36). With the help of the vocational expert (VE), the ALJ determined that Plaintiff was
unable to perform any past relevant work, but that there were other jobs Plaintiff could perform,
such as assembly worker, machine tender, and inspector. (Tr. 40-41).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
considered additional evidence, and denied the request on June 20, 2012.
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. 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. 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)(D). A Plaintiff must show that her disability, not simply her 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 had engaged in substantial
gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §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 (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) Plaintiff has additional impairments that
are severe; 2) The ALJ’s RFC determination is inconsistent with the evidence: 3) Plaintiff cannot
perform the jobs identified at step five. (Doc. 10).
An impairment is severe within the meaning of the regulations if it significantly limits
an individual’s ability to perform basic work activities.
20 C.F.R. §§ 1520(a)(4)ii),
416.920(a)(4)(ii). An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or a combination of slight abnormalities
that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §
§ 404.1521, 416.921. The Supreme Court has adopted a “de minimis standard” with regard to
the severity standard. Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cri. 1989).
Plaintiff contends that Plaintiff’s major depressive disorder, recurrent, severe, as well as
other disorders recognized by the ALJ, were severe impairments.
As to Plaintiff’s depression, on September 2, 2009, Dr. Terrell Bishop, Staff Psychiatrist
at Western Arkansas Counseling and Guidance Center, assessed Plaintiff and noted that Plaintiff
reported that her depression was largely resolved. (Tr. 237). He diagnosed her with generalized
anxiety and depression, largely resolved. (Tr. 237). By October 2, 2009, Plaintiff reported to
Susan Smith, MS, LPC, NCC (Licensed Professional Counselor), at Western Arkansas
Counseling and Guidance Center, that Zoloft was working well, and Ms. Smith noted that
Plaintiff’s concentration was good to fair, and her judgment and insight were both fair to good.
(Tr. 317). Ms. Smith also reported that the medication was effective for targeted symptoms. (Tr.
On October 29, 2009, Plaintiff reported to Alice Slavens, APN, at Western Arkansas
Counseling and Guidance Center, that Zoloft helped and that she was overall having more good
days than bad. Her concentration was reported as good, and judgment and insight were both
good to fair. (Tr. 319-320). On December 3, 2009, Plaintiff reported that the Zoloft was
effective for her depression. (Tr. 321). On February 18, 2010, Plaintiff reported to Ms. Smith
that her depression and anxiety were well controlled. (Tr. 349).
On March 4, 2010, Plaintiff reported that overall she was doing well, but did have some
anxiety. (Tr. 359). Her Zoloft was increased. (Tr. 360). By June 10, 2010, Plaintiff had been
missing therapy appointments at Western Arkansas Counseling and Guidance Center, and
Plaintiff reported that she was not depressed. (Tr. 363).
It is clear from the medical records that Plaintiff’s depression was controlled by
medication and an impairment that is controlled with medication is not medically severe. See
Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996); Gilmore v. Colvin, No. 12-cv-1076, 2013
WL 2154926 (W.D. Ark., May 17, 2013).
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s decision regarding severe impairments.
RFC is the most a person can do despite that person’s limitations.
§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
description 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
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). “The ALJ is [also] required to set forth specifically a claimant’s limitations and to
determine how those limitations affect his RFC.” Id.
In this case, the ALJ found that Plaintiff had the RFC to perform light work with certain
limitations. (Tr. 36). Plaintiff asserts that the biggest problem is that the ALJ “latched on to
moments when Plaintiff’s symptoms improved to ascertain her RFC.” (Doc. 10 at p. 13). The
Court does not agree. In making this determination, the ALJ considered all of the medical
records, as well as Plaintiff’s description of her limitations. He discussed Plaintiff’s back pain,
noting that a CT scan of Plaintiff’s lumbar spine revealed disc herniation on the left and bulging
annulus at the L4-5 intervertebral disc space level. (Tr. 37). He also noted that it was treated
conservatively with medication. The ALJ also noted that Dr. Anthony Capocelli, a neurologist
at River Valley Musculoskeletal Center, examined Plaintiff on April 14, 2010, and that an MRI
of Plaintiff’s cervical and thoracic spine revealed no abnormalities. (Tr. 37). Although it appears
that the ALJ may not have had Dr. Capocelli’s report dated September 29, 2010, before he issued
his decision, the Court does not believe it would have changed the outcome. In that report, Dr.
Capocelli reported that plaintiff was due for “step-up and nonoperative intervention and that
Plaintiff would have LESI on a regular basis.” (Tr. 428). After the ALJ issued his decision,
Plaintiff again saw Dr. Capocelli, who then reported that Plaintiff had for the most part been able
to continue with her normal routine day-to-day activities, and had stabilized to a reasonable
degree. (Tr. 425). On January 31, 2012, a medical record from St. Edward’s Mercy Medical
Center indicated that Plaintiff would continue nonoperative treatment with maximal
nonoperative intervention. (Tr. 421).
The ALJ gave little weight to the opinion of Ms. Smith, stating that it was not supported
by the longitudinal medical record. (Tr. 39). Ms. Smith opined that Plaintiff was unable to
maintain gainful employment due to her mental health disorders. She also found that Plaintiff
had marked limitations in certain functional areas. However, as noted by Defendant, Ms. Smith
is not an acceptable medical source, and her opinion is therefore not entitled to any special
weight. See Van Vickle v. Astrue, 539 F.3d 825, 829 (8th Cir. 2008)(the Eighth Circuit held
that in certain circumstances, the ALJ may give the opinion of a non-acceptable medical source
greater weight than to the opinion of an “acceptable medical source).
Based upon the foregoing, and for those reasons given in Defendant’s well stated brief,
the Court finds there is substantial evidence to support the ALJ’s RFC Assessment.
Step Five Determination:
Plaintiff contends that the ALJ’s hypothetical question did not include all of the
impairments from which Plaintiff suffered and therefore, the ALJ should not have relied upon
the VE’s testimony.
At the hearing held before the ALJ, the ALJ’s hypothetical question set forth the
impairments which the ALJ accepted as true and which were supported by the record as a whole.
See Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court believes that the
VE’s responses to the hypothetical question constitute substantial evidence supporting the ALJ’s
conclusion that Plaintiff’s impairments did not preclude her from performing other work as an
assembly worker, machine tender, and inspector. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir.
1996)(testimony from VE based on properly phrased hypothetical question constitutes substantial
Based upon the ALJ’s RFC findings, which this Court believes to be supported by
substantial evidence, along with the testimony of the VE, the Court is of the opinion that
substantial evidence supports the ALJ’s finding that there were other jobs Plaintiff could
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 26th day of July, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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