Kiser v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 21, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CAROLYN W. COLVIN1, Commissioner
of Social Security Administration
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). 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).
I. Procedural Background:
The plaintiff filed an applications for SSI on July 1, 2010, alleging an onset date of
January 2, 2003, due to plaintiff’s knee pain, back pain, bipolar, schizophrenia, asthma, arthritis,
diabetes, hypertension, morbid obesity, degenerative disc disease and sciatica (T. 146).
Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on April 5, 2011. Plaintiff was present and represented
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
At the time of the administrative hearing, plaintiff was 42 years of age and possessed a
9th grade education. The Plaintiff had no past relevant work (“PRW”) (T. 138).
On May 11, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s personality disorder, ADHD, obesity, diabetes mellitus, hypertension, and
asthma did not meet or equal any Appendix 1 listing. T. 18. The ALJ found that plaintiff
maintained the residual functional capacity (“RFC”) to perform light work with additional
limitations. T. 20. With the assistance of a vocational expert, the ALJ then determined Plaintiff
could perform the requirements of representative occupation such as bench worker and
maid/housecleaner. T. 26.
II. Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
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 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. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if
the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or 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 (2003).
The court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records,
and relevant administrative records and finds the ALJ's decision is supported by substantial
A. Step Two:
The Plaintiff contends the she had additional sever impairments that the ALJ did not
consider (ECF No. 8, p. 9). Once an ALJ finds that a claimant has a “severe” impairment at step
two, the ALJ must then consider all impairments, including those that are less than “severe,” in
determining a claimant’s residual functional capacity. See 20 C.F.R. § 404.1545(e); Social
Security Ruling (SSR) 96–8p, at *5; see also Maziarz v. Secretary of Health and Human Serv.,
837 F.2d 240, 244 (6th Cir.1987) (failure of ALJ to find claimant’s cervical condition was
non-severe at step two was not reversible error where ALJ also found that claimant had “severe”
heart disease so that he could consider the cervical condition in the residual functional capacity
Here, the ALJ found that Plaintiff had severe impairments of personality disorder,
attention deficit hyperactivity disorder, obesity, diabetes mellitus, hypertension, and asthma. (T.
18). At step two, the claimant bears the burden to demonstrate the existence of an impairment or
combination of impairments that “significantly limits [the] physical or mental ability to do basic
work activities.” 20 C.F.R. § 416.920(c). While step two requires only “de minimis” proof of
impairment, the claimant must show more than the mere presence of a condition or ailment.
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir 2007). Here, Plaintiff failed to meet her burden with
regard to any additional severe impairments.
The court also finds that the ALJ specifically considered all of the evidence regarding
mental impairments and physical impairments in his functional capacity assessment (Tr. 20-25).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
1. Development of the Record:
The Plaintiff contends the ALJ failed to properly develop the record. (ECF No. 8, p. 8).
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d 935,
938 (8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination of
disability may be made). This duty exist “even if ... the claimant is represented by counsel.” Boyd
v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d 428, 431 (8th
Cir.1983)). The ALJ is not required to act as Plaintiff’s counsel. See Clark v. Shalala, 28 F.3d
828, 830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute counsel, but only
to develop a reasonably complete record); see also Shannon v. Chater, 54 F.3d 484, 488 (8th Cir.
1995) (“reversal due to failure to develop the record is only warranted where such failure is
unfair or prejudicial”).
The Plaintiff’s medical records are significantly lacking and the Commissioner sought a
Mental Diagnostic Evaluation by Dr. Kralik (T. 260), a Psychiatric Review Technique (T. 292)
and a Mental RFC Assessment (T. 290) by Dr. Brown, a psychiatrist in August 2010. Dr.
Brown’s opinion was reviewed an affirmed by Dr. Henderson in November 2010. (T. 309). The
Commissioner also obtained a Physical RFC Assessment by Dr. Payne (T. 287) in September
2010. Dr. Payne’s opinion was reviewed and affirmed by Dr. Thomas in November 2010. (T.
There is no bright line rule indicating when the Commissioner has or has not adequately
developed the record; rather, such an assessment is made on a case-by-case basis. Battles v.
Shalala, 36 F.3d 43 at 45 (C.A.8 (Ark.), 1994). There is nothing in the Plaintiff’s medical
history that would have required the ALJ to re-contact any of her treating physicians and the
court finds that the ALJ properly developed the record.
The Plaintiff also contends the ALJ did not properly evaluate her credibility. (ECF No. 8,
p. 10). In determining a claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’
” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir.2002)). Assessing and resolving credibility issues is a matter that is properly
within the purview of the ALJ. Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will
not substitute its own credibility opinion for that of the ALJ). As the Eighth Circuit has
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). The court should , “ defer to
the ALJ's determinations regarding the credibility of testimony, so long as they are supported by
good reasons and substantial evidence.” Perks v. Astrue 687 F.3d 1086, 1091 (C.A.8
This court concludes that, because the ALJ gave several valid reasons for the ALJ's
determination that Plaintiff was not entirely credible, the ALJ's credibility determination is
entitled to deference, see Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir.2012).
3. RFC Determination:
The ALJ determined that the Plaintiff had the RFC to:
“occasionally lift/carry twenty pounds, frequently lift/carry ten pounds,
stand/walk for six hours during an eight-hour workday, sit for six hours during an
eight-hour workday, and frequently climb, balance, crawl, kneel, stoop, and
crouch. The claimant must avoid concentrated exposure to dusts, odors, gases, and
chemicals. She can understand, remember, and carry out simple instructions, can
respond to usual work situations, and can appropriately interact with supervisors.
She can have incidental contact with co-workers and no contact with the general
public.” (T. 20).
Dr. Winston Brown, a psychiatrist, determined that the Plaintiff had only moderate to
mild limitations in her functional capabilities due to her mental impairments (T. 302, 290) and
that the Plaintiff was able to “perform work where interpersonal contact is incidental to work
performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few
variables, little judgment; supervision required is simple, direct and concrete (unskilled).” (T.
Opinions of specialists on issues within their areas of expertise are “generally” entitled to
more weight than the opinions of non-specialists (See 20 C.F.R. §§ 404.1527(d)(5),
416.927(d)(5). Guilliams v. Barnhart 393 F.3d 798, 803 (C.A.8 (Mo.),2005), 20 C.F.R. §
404.1527) and "We generally give greater weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist." 20 C.F.R. § 416.927(d)(5). See also Brown v. Astrue, 611 F.3d 941, 953 (C.A.8
Dr. Bill Payne, M.D. provided a Physical RFC assessment on September 14, 2010 finding
the Plaintiff could lift 20 pounds occasionally, 10 pounds frequently and she could stand and/or
walk and sit for up to 6 hours in an 8-hour workday. (T. 281). Dr. Payne’s opinion was reviewed
and affirmed by Dr. Thomas in November 2010. (T. 308).
The Eighth Circuit Court of Appeals has upheld the Commissioner's RFC assessment in
cases where the ALJ did not rely on a treating physician's functional assessment of the claimant's
abilities and limitations. See Page v. Astrue, 484 F.3d at 1043 (the medical evidence, state
agency physician opinions, and claimant's own testimony were sufficient to determine RFC);
Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004) (medical evidence, state agency
physicians' assessments, and claimant's reported activities of daily living supported RFC
finding); Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004) (ALJ's RFC assessment
properly relied upon assessments of consultative physicians and a medical expert, which did not
conflict with the treating physician's records).
The court finds that the record supports the ALJ’s reliance upon the non-treating
consultive evaluations in the record.
C. Vocational Expert Testimony:
Testimony from a vocational expert ("VE") based on a properly-phrased hypothetical
question constitutes substantial evidence. See Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir.
1996); cf. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (when hypothetical question does
not encompass all relevant impairments, VE's testimony does not constitute substantial evidence
to support the ALJ's decision). The ALJ's hypothetical question needs to "include only those
impairments that the ALJ finds are substantially supported by the record as a whole." Id. (citing
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228,
1230 (8th Cir.1994). A hypothetical need not use specific diagnostic or symptomatic terms
where other descriptive terms can adequately define the claimant's impairments. Roe v. Chater,
92 f.3d 672, 676 (8th Cir. 1996).
The court finds that the ALJ's hypothetical to the vocational expert (VE) accounted for all
of Plaintiff's proven impairments, see Buckner v. Astrue, 646 F.3d 549, 560–61 (8th Cir.2011)
(VE's testimony constitutes substantial evidence when it is based on hypothetical that accounts
for all of claimant's proven impairments; hypothetical must include impairments that ALJ finds
substantially supported by record as a whole).
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ's decision, and thus the decision should be affirmed. The
undersigned further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this October 21, 2013.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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