Barber v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on April 9, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CIVIL NO. 13-2073
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Bruce Barber, 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 claims for a period of disability and disability insurance benefits (DIB) and
supplemental security income (SSI) benefits under the provisions of Titles II and 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 applications for DIB and SSI on May 31, 2011,
alleging an inability to work since May 1, 2008, due to bronchial asthma and trouble breathing,
depression, back problems, and post-traumatic stress disorder. (Tr. 123, 130, 158). For DIB
purposes, Plaintiff maintained insured status through September 30, 2010. (Tr. 11, 138). An
administrative hearing was held on February 7, 2012, at which Plaintiff appeared with counsel
and testified. (Tr. 26-61).
By written decision dated June 8, 2012, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 13).
Specifically, the ALJ found Plaintiff had the following severe impairments: mild to moderate
chronic obstructive pulmonary disease (COPD); obesity; hypertension; generalized complaints
of pain without neurological impairment; major depression, recurrent; post-traumatic stress
disorder (PTSD); and avoidant personality traits. (Tr. 13). 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. 14). The ALJ found Plaintiff retained the residual functional
capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
has environmental limitations and must avoid unusually high levels of
atmospheric contaminants and avoid prolonged work temperature of less than 60
degrees Fahrenheit (F) and in excess of 85 degrees F. Further, he must avoid
prolonged exposure to wet working environments. In addition, due to mental
symptoms, he is limited to interpersonal contact incidental to the work
performed, work where the complexity of tasks is learned and performed by rote
with few variables and little judgment and work where the supervision required
is simple, direct and concrete.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a routing clerk/conveyor belt worker, and a package sorter/mail sorter. (Tr. 20, 53).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on February 4, 2013. (Tr. 2-5). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 11).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 18, 19).
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. §§ 404.1520, 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. §§ 404.1520, 416.920.
Plaintiff argues the following issue on appeal: 1) the ALJ erred in determining that
Plaintiff did not meet Listing 3.02A; 2) the ALJ erred in the credibility analysis of Plaintiff; and
3) the ALJ erred in determining Plaintiff’s RFC.
In order to have insured status under the Act, an individual is required to have twenty
quarters of coverage in each forty-quarter period ending with the first quarter of disability. 42
U.S.C. § 416(i)(3)(B). Plaintiff last met this requirement on September 30, 2010. Regarding
Plaintiff’s application for DIB, the overreaching issue in this case is the question of whether
Plaintiff was disabled during the relevant time period of May 1, 2008, his alleged onset date of
disability, through September 30, 2010, the last date he was in insured status under Title II of the
In order for Plaintiff to qualify for DIB he must prove that, on or before the expiration
of his insured status he was unable to engage in substantial gainful activity due to a medically
determinable physical or mental impairment which is expected to last for at least twelve months
or result in death. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984). Records and
medical opinions from outside the insured period can only be used in “helping to elucidate a
medical condition during the time for which benefits might be rewarded.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir.2006) (holding that the parties must focus their attention on claimant's
condition at the time she last met insured status requirements).
The burden of proof is on the Plaintiff to establish that his impairment meets or equals
a listing. See Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990).
To meet a listing, an impairment must meet all of the listing's specified criteria. Id. at 530, 110
S.Ct. 885 (“An impairment that manifests only some of these criteria, no matter how severely,
does not qualify.”); Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “Medical
equivalence must be based on medical findings.” 20 C.F.R. § 416.926(b) (2003); Sullivan, 493
U.S. at 531 (“a claimant ... must present medical findings equal in severity to all the criteria for
the one most similar listed impairment”).
The Court finds, based upon the record as a whole, as well as the well-stated reasons
outlined in the Defendant’s brief, that Plaintiff’s argument is without merit, and there was
sufficient evidence for the ALJ to make an informed decision. Therefore, the Court finds there
is sufficient evidence to support the ALJ’s determination that Plaintiff did not meet a Listing.
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 United States Court of Appeals for the Eighth Circuit 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).
After reviewing the administrative record, and the Defendant’s well-stated reasons set
forth in her brief, it is clear that the ALJ properly considered and evaluated Plaintiff’s subjective
complaints, including the Polaski factors. The Court notes that in a Function Report completed
by Plaintiff on June 21, 2011, Plaintiff indicated that he spent his day doing housework, taking
care of his children, and doing yard work. (Tr. 175). More specifically, Plaintiff reported that
he was able to take care of his personal hygiene; to prepare meals; to perform chores including
cleaning, laundry and mowing with frequent breaks; to drive daily; to shop for groceries and
household items; to watch movies and television daily, and fish rarely; and to spend time with
others at his home and his parent’s house. Plaintiff also reported that he could pay bills, count
change, handle a savings account, and use a checkbook. The record also revealed that in October
of 2011, Plaintiff reported that he was able to perform all activities of daily living without
assistance. (Tr. 291).
In assessing Plaintiff’s credibility, the ALJ also properly pointed out that while it
appeared Plaintiff had stopped smoking in late December of 2011, Plaintiff had continued to
smoke daily, despite having respiratory problems. Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008) (holding that “the ALJ appropriately considered [plaintiff]' s failure to stop smoking in
his credibility determination” where “there [was] no dispute that smoking has a direct impact on
[plaintiff]'s pulmonary impairments”). Based on the record as a whole, the Court finds there is
substantial evidence to support the ALJ’s credibility findings.
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 the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and his medical records
when he determined Plaintiff could perform light work with limitations. The Court notes that
in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and nonexamining medical professionals, including the opinions of Drs. Chester Lawrence Carlson,
Gene Chambers, Danny Silver, Abesie Kelly, Diane Kogut, Stephen A. Whaley, and Bill F.
Payne, and set forth the reasons for the weight given to the opinions. Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012) (“It is the ALJ’s function to resolve conflicts among the
opinions of various treating and examining physicians”)(citations omitted); Prosch v. Apfel, 201
F.3d 1010 at 1012 (the ALJ may reject the conclusions of any medical expert, whether hired by
the claimant or the government, if they are inconsistent with the record as a whole). Based on
the record as a whole, the Court finds substantial evidence to support the ALJ’s RFC
determination for the relevant time period.
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 during the relevant time period Plaintiff's impairments did not preclude him from performing
other work as a routing clerk/conveyor belt worker, and a package sorter/mail sorter. 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 9th day of April, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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