Brown v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on October 17, 2013. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
KEITH BROWN

PLAINTIFF

v.

CASE NO.

12-2223

CAROLYN W. COLVIN1, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
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 DIB and SSI on December 1, 2009, alleging an
onset date of October 18, 2008, due to plaintiff’s right leg, left hand pain, anger issues and
arthritis (T. 203). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff
then requested an administrative hearing, which was held on November 2, 2010. Plaintiff was
present and represented by counsel.

1

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.

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At the time of the administrative hearing, plaintiff was 47 years of age and possessed a
high school education with one year of college. The Plaintiff had past relevant work (“PRW”)
experience as a construction worker and a cook (T. 204).
On January 19, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s osteoarthritis, status post left wrist fracture, status post right fibula fracture,
and adjustment disorder with anxiety and depression did not meet or equal any Appendix 1
listing. T. 14. The ALJ found that plaintiff maintained the residual functional capacity (“RFC”)
to light work with additional limitations. T. 15. With the assistance of a vocational expert, the
ALJ then determined Plaintiff could perform the requirements of representative occupation such
as gate guard, merchant patroller, food prep worker, and information clerk. T. 20.
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
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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).
III. Discussion:
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
evidence.
A. Residual Functional Capacity:
RFC is the most a person can do despite that person’s limitations. See 20 C.F.R. § 404.
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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. Credibility
The Plaintiff contends the ALJ did not properly evaluate his credibility (ECF No. 8, p. 2)
when evaluating his subjective complaints. In determining a claimant's RFC, “ ‘the ALJ must
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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 (Ark.),2012).
This court concludes that the ALJ’s stated reasons and the record support the ALJ's
determination that Plaintiff was not entirely credible, and the ALJ's credibility determination is
entitled to deference, see Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir.2012).
2. RFC Determination
The Plaintiff contends that the ALJ’s RFC determination is not supported by the record.
(ECF No. 8, p. 7). The ALJ determined that the Plaintiff had the RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can only occasionally balance, stoop, kneel, crouch, crawl,
and climb ramps and stairs; cannot climb ladders, ropes, or scaffolds; and can only
occasionally finger with his left upper extremity. Further, the claimant can
perform work where interpersonal contact is routine, but superficial; where the
complexity of tasks is learned by experience with several variables and judgment
within limits; and where supervision required is little for routine tasks, but
detailed for non-routine tasks.
Non examining consultive physician, Dr. Jerrye Woods, provided a Physical RFC
assessment on March 16, 2010 finding the Plaintiff could lift 20 pounds occasionally, 10 pounds
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frequently, and stand and/or walk and sit for 6 hours in an 8-hour workday. (T. 346). Plaintiff
also had limitations in stooping and kneeling (T. 347) and fine manipulation (T. 348).
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).
In this case the Plaintiff’s treating physician authorized him to return to work after his leg
fracture in 2002 (T. 413) and his hand fracture in October 2008 (T. 388). In fact the Plaintiff
returned to work after his hand fracture working on a jackhammer which his treating physician
did not recommend but which the Plaintiff insisted on continuing. (T. 391). There is nothing in
the medical records that conflict with the ALJ’s limited RFC assessment.
B. Vocational Expert:
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
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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 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).
IV. Conclusion:
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 17, 2013.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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