Holman v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 28, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JAMES W. HOLMAN, JR.
CIVIL NO. 12-2235
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, James W. Holman, Jr., 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 claim for supplemental security income (SSI) benefits 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 his current application for SSI on July 6, 2010, alleging an
inability to work due to diabetes, a leak in a heart valve, high blood pressure, and irritable bowel
syndrome (IBS). (Tr. 97, 109). An administrative hearing was held on June 7, 2011, at which
Plaintiff appeared with counsel and testified. (Tr. 24-43).
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.
By written decision dated July 21, 2011, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 14).
Specifically, the ALJ found Plaintiff had the following severe impairments: diabetes mellitus,
diabetic retinopathy, essential hypertension, a heart valve leak, and IBS. 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:
perform light work as defined in 20 CFR 416.967(b) in that the claimant is able
to occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds.
The claimant is able to sit for six hours during an eight-hour workday and stand
and walk for six hours during an eight-hour workday. The claimant cannot
perform work which requires excellent vision but is able to avoid hazards in the
work place and distinguish shapes and colors of objects such as nuts, bolts and
(Tr. 15). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a poultry laborer, a poultry dresser, a production assembly worker, and a production helper.
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 17, 2012. (Tr. 1-5). 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. 14,15).
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 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 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 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. § 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. § 416.920.
Plaintiff argues the following issues on appeal: 1) the ALJ erred in failing to fully and
fairly develop the record; 2) the ALJ erred in determining Plaintiff’s severe impairments; 3) the
ALJ erred in his credibility analysis of Plaintiff; 4) the ALJ erred in determining Plaintiff’s RFC;
and 5) Plaintiff cannot perform the jobs identified at Step 5.
Fully and Fairly Develop the Record:
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). After reviewing the administrative record, it is clear that 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
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 improperly found Plaintiff’s alleged IBS,2 cirrhosis of the
liver, and chest pain, to be a non-severe impairments. While the ALJ did not find these alleged
impairments to be severe, the ALJ discussed Plaintiff’s alleged impairment in the decision, and
clearly stated that he considered all of Plaintiff’s impairments, including the impairments that
were found to be non-severe. (Tr. 13). 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
The Court notes that the ALJ listed Plaintiff’s IBS as a severe impairment; however, the ALJ’s decision clearly
states that he found this impairment to be non-severe. (Tr. 14). The Court believes the ALJ’s inclusion of IBS in the list of
severe impairments to be a typographical error.
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”). Based on the foregoing, the ALJ's not finding that Plaintiff's alleged IBS, cirrhosis
of the liver, and chest pain to be severe impairments 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 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 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, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the record
indicated that Plaintiff could help take care of his elderly mother; could take care of his personal
needs; could do some household chores; could drive; could spend time with friends at an auto
repair shop once a week; could build models with his nephew; could prepare simple meals; could
pay bills and handle money; and could visit with people in person or by phone a few times a day.
(Tr. 136-143). 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:
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.
In determining that Plaintiff maintained the RFC to perform light work with limitations,
the ALJ considered the medical assessments of the non-examining agency medical consultants;
Plaintiff’s subjective complaints; and his medical records for the relevant time period. Plaintiff's
capacity to perform light work with limitations, is also supported by the fact that the medical
evidence does not indicate that Plaintiff's examining physicians placed restrictions on his
activities that would preclude performing the RFC determined for the relevant time period. See
Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) (lack of physician-imposed restrictions
militates against a finding of total disability). Accordingly, the Court finds there is substantial
evidence of record to support the ALJ’s RFC findings.
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 him from performing work as a poultry laborer, a poultry
dresser, a production assembly worker, and a production helper. 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 28th day of October, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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