Wallace v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION.(sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DONNA WALLACE

v.

PLAINTIFF

CASE NO.

12-2249

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 on December 27, 2010 and SSI on July 2,
2010, alleging an onset date of April 29, 2010, due to plaintiff’s depression, inability to
concentrate, DDD, scolisis, and foot surgery (T. 158). Plaintiff’s applications were denied
initially and on reconsideration. Plaintiff then requested an administrative hearing, which was
held on October 31, 2011. 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 42 years of age and possessed an
11th grade education. The Plaintiff had past relevant work (“PRW”) experience as a cashier,
housekeeper, and laborer (T. 159).
On November 4, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s mood disorder, personality disorder, and back disorder did not meet or equal
any Appendix 1 listing. T.16 . The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to perform light work with additional limitations. T. 17. With the assistance of
a vocational expert, the ALJ then determined Plaintiff could perform the requirements of
representative occupation such as sedentary unskilled assemblers and production worker and
sedentary unskilled inspector/examiner. T. 22.
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. Step Two:
Step two of the regulations involves a determination, based on the medical evidence,
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whether the claimant has an impairment or combination of impairments that significantly limits
the claimant's ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). At step two of the sequential evaluation process, the claimant bears the burden
of proving that he has a severe impairment. Nguyen v. Chater, 75 F.3d 429, 430-431 (8th Cir.
1996). An impairment or combination of impairments is not severe if there is no more than a
minimal effect on the claimant’s ability to work. See, e.g., Nguyen, 75 F.3d at 431. A slight
abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on
the ability to do basic work activities is not a severe impairment. SSR 96-3p, 1996 WL 374181
(1996); SSR 85-28, 1985 WL 56856 (1985). If the claimant is not suffering a severe impairment,
he is not eligible for disability insurance benefits. 20 C.F.R. § 404.1520(c).
Plaintiff attempts to establish that her alleged foot problem was a severe impairment
based on her subjective complaints and the new evidence that she provided to the Appeals
Council, which was dated two years or more before the alleged onset date. See Pl.’s Br.
at 12-13. The Appeals Council considered the new evidence but found that it did not provide
any basis for changing the ALJ’s decision (Tr. 1-5) and the court agrees. There is no evidence in
the record to establish the Plaintiff “foot problem” to be severe.
B. RFC:
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
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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:
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
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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, because the ALJ gave valid reasons for the ALJ's
determination that Plaintiffr 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).
2. Development of the Record:
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 Commissioner obtained a Mental Diagnostic Evaluation on December 2, 2010 (T.
230), a Psychiatric Review Technique(T. 243) and a Mental RFC Assessment on December 17,
2010 (T. 239-241). The Mental RFC Assessment determined the Plaintiff to be only Moderately
Limited in seven areas and Not Significantly Limited in 13 areas. (T. 241). The Commissioner
also obtained a Physical Assessment from Dr. Bill Payne on March 29, 2011 which found the
Plaintiff ‘s physical condition to be “Not Severe”. (T. 277).
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). For the reasons stated below, there is nothing in
the Plaintiff’s treatment records that the court feels remains undeveloped and the ALJ properly
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evaluated the Plaintiff’s RFC upon the medical evidence presented.
3. RFC Determination
The ALJ found that the “ opinions of the state agency medical consultants have been
considered, and the undersigned concurs with their finding that the claimant is limited to
unskilled work. However, based on all the evidence of record including information received at
the hearing level, the undersigned finds that the claimant is more limited physically than
determined by the state agency consultants.” (T. 20).
While Plaintiff’s treating and/or examining physicians never provided a separate medical
source statement, Plaintiff’s progress notes from 2010 confirm that she only required
conservative treatment (Tr. 197-256 ). See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.
1993) (holding that treating physician’s conservative treatment was inconsistent with plaintiff’s
allegations of disabling pain). When Plaintiff sought treatment in January 2010, she had no
complaints of foot or back problems and a review of her musculoskeletal system was within
normal limits (Tr. 200). See McGeorge v. Barnhart, 321 F.3d 766, 768 (8th cir. 2003)
(examination showed good muscle strength and full ranges of motion that is consistent with a
light work finding). However, on her onset date, April 29, 2010, Plaintiff did return for
treatment due to a back injury “about a month ago” (Tr. 216-17). All in all, Plaintiff was
diagnosed with low back pain and given medication (Tr. 216-17). Plaintiff had no muscle
weakness, no stiffness, and no swelling; and she walked without assistance (216-17). Plaintiff’s
MRI scan and x-rays only showed some scolisis with intact disc spaces, well preserved vertebral
body heights, and no disc herniation (Tr. 221-22).
Plaintiff failed to meet her burden of demonstrating her RFC, see Perks v. Astrue, 687
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F.3d 1086, 1092 (8th Cir.2012) and the ALJ properly determined the Plaintiff’s RFC. 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). Here the court finds that the medical evidence supports the ALJ’s RFC determination.
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 7, 2013.

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

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