Bailey v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on March 5, 2014. (sh)
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 DIB & SSI on October 29, 2010, alleging an onset
date of January 1, 20102, due to plaintiff’s rheumatoid arthritis and bad back. Plaintiff’s
applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on November 8, 2011. Plaintiff was present and
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.
The onset date was modified by oral motion during the hearing to March 10, 2010. (T. 26).
represented by counsel.
At the time of the administrative hearing, plaintiff was 41 years of age and possessed a
High School education plus two years of college. The Plaintiff had past relevant work (“PRW”)
experience as a EMT, scanning coordinator, sub teacher. (T. 167).
On February 17, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s obesity, rheumatoid arthritis, and chronic low back pain did not meet or equal
any Appendix 1 listing. T. 12. The ALJ found that plaintiff maintained the residual functional
capacity (“RFC”) to perform light work. T. 12. With the assistance of a vocational expert, the
ALJ then determined Plaintiff could perform her pas relevant work as cashier and grocery
checker. T. 16.
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:
Step two of the regulations involves a determination, based on the medical evidence,
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). 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).
The Plaintiff alleges that the ALJ erred in failing to find her mental impairment severe.
(ECF No. 13, p. 8). 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
The court notes that the Plaintiff did not list any mental impairment as a basis for her
disability claim when she filed in October 2010. (T. 166). The fact that the plaintiff did not
allege the impairment as a basis for her disability in her application for disability benefits is
significant, even if the evidence of the impairment was later developed. See Smith v. Shalala,
987 F.2d 1371, 1375 (8th Cir.1993); Dunahoo v. Apfel, 241, F. 3d 1033, 1039 (8th Cir. 2001).
In this case it does not even appear that any mental impairment claim was developed at
the hearing because the court cannot find any mention of it in the transcript of the hearing. The
ALJ is not obligated to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability. Halverson v. Astrue, 600 F.3d
922, 934 (8th Cir.2010).
The ALJ found it significant that Patricia J. Walz, Ph.D., believed that Plaintiff’s anxiety
was managed fairly well with only intermittent medication and her reported posttraumatic stress
symptoms were not severe enough to qualify for a diagnosis (Tr. 50, 345). Dr. Walz noted that
Plaintiff was able to drive, shop independently, talk to friends on the phone, and volunteer with a
Court Appointed Special Advocate (CASA) program (Tr. 50, 345). Dr. Walz also noted that
Plaintiff’s speech was clear and intelligible, and her social skills, attention, and concentration
were adequate (Tr. 50, 346).
The court finds that the ALJ properly determined that the Plaintiff's "crying spell" were
not a severe impairment.
B. Residual Functional Capacity:
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).
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
(Ark.),2012). “The ALJ is not required to discuss each Polaski factor as long as the analytical
framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.2004).
The ALJ pointed out the substantial activities of daily living which the Plaintiff engaged
in. (T. 14). Such activities are inconsistent with disabling pain. See Pena v. Chater, 76 F.3d 906,
908 (8th Cir. 1996) (ability to care for one child, occasionally drive, and sometimes go to the
store); Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996) (ability to visit neighbors, cook, do
laundry, and attend church); Novotny v. Chater, 72 F.3d at 671 (ability to carry out garbage, carry
grocery bags, and drive); Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1994) (claimant’s
ability to read, watch television, and drive indicated his pain did not interfere with his ability to
concentrate); Woolf v. Shalala, 3 F.3d 1210, 1213-1214 (8th Cir. 1993) (ability to live alone,
drive, grocery shop, and perform housework with some help from a neighbor). Moreover, “acts
such as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.” Medhaug v. Astrue, 578 F.3d 805. Cf.
Reed v. Barnhart, 399 F.3d 917, 923-24 (8th Cir.2005); Riggins v. Apfel, 177 F.3d 689, 692 (8th
Cir.1999) (finding activities such as driving his children to work, driving his wife to school,
shopping, visiting his mother, taking a break with his wife between classes, watching television,
and playing cards were inconsistent with plaintiff's complaints of disabling pain).
The ALJ also considered inconsistencies between Plaintiff’s allegations and the objective
medical evidence. Wagner, 499 F.3d at 851 (subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole). For example, upon examination on December 15,
2010, Plaintiff’s straight-leg raising was negative; she had no muscle spasms, weakness, or
atrophy; her range of motion was normal, and she could hold a pen to write and touch her
fingertips to her palm (Tr. 54, 338-339). On February 18, 2010, Plaintiff’s erythrocyte
sedimentation rate (ESR) Westergren was 11, where the reference range is 0-20 (Tr. 53, 272).
Plaintiff’s rheumatoid factor was 10 on March 2, 2010, where a normal range is 0-59 (Tr. 53,
268). A September 2009 MRI showed only minimal bulges and mild facet hypertrophy (Tr. 52,
237). A March 2, 2010, x-ray of Plaintiff’s left knee showed trace joint effusion and no
significant abnormality (Tr. 53, 329). These mild findings conflicted with Plaintiff’s subjective
This court concludes that, because the ALJ gave several valid reasons for the ALJ's
determination that Plaintiff was not entirely credible, and based upon a review of the record, the
ALJ's credibility determination is entitled to deference, see Renstrom v. Astrue, 680 F.3d 1057,
1067 (8th Cir.2012).
2. RFC Determination
Doctor Sharon Keith, a non-examining consultive physician, provided a Physical RFC
Assessment on March 15, 2011 finding the Plaintiff could lift 20 pounds occasionally, 10 pounds
frequently, and stand and/or walk and sit for 6 hours in an 8-hour workday. (T. 366). Dr. Keith
noted that Dr. Hoang, who performed a consultive physical exam on December 15, 2010, felt that
the Plaintiff had “severe” limitations (T. 340) but she had normal range of motion for all joint (T.
338, 372) and that there was no sign of synovitis (swelling or inflamation). (T. 372). Plaintiff
also had negative straight-leg raising, normal reflexes, no muscle weakness or atrophy, and a
normal gait (Tr. 339). Her grip strength was 80% in the right hand and 90% in the left hand, and
she was able to hold a pen to write and touch her fingertips to her palm (Tr. 339). A treating
physician’s own inconsistency may undermine or diminish the weight given to his opinions.
Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006); Garza v. Barnhart, 397 F.3d 1087, 1089
(8th Cir. 2005) (physician’s opinion inconsistent with own relatively mild examination findings).
Dr. Keith, taking into account the physical exam by Dr. Hoang, the Plaintiffs’s obesity and disc
protrusion felt that the Plaintiff would be able to perform light work. ( Id.). Dr. Keith’s opinion
was reviewed and affirmed by Dr. Jonathan Norcross on April 6, 2011.
The ALJ also properly gave little weight to the opinion of Plaintiff’s nurse, Stephanie
Ellis, APN (Tr. 54, 382). As a nurse, Ms. Ellis is considered an “other source” and is not entitled
to the same weight given to “acceptable medical sources.” See 20 C.F.R. §§ 404.1513(d)(1),
416.913(d)(1). Ms. Ellis opined in a November 22, 2011, letter that Plaintiff had synovitis5 that
made it difficult for her to maintain employment that involved lifting, pushing or pulling (Tr.
382). She also said that standing or sitting long periods of times increased Plaintiff’s symptoms
The ALJ noted that the record contained no objective findings of synovitis (Tr. 54). In
fact, on December 16, 2010, Plaintiff had no synovitis of any joint (Tr. 338). Plaintiff has pointed
to no evidence of a diagnosis of synovitis or of continued joint swelling to support Ms. Ellis’
opinion. On August 3, 2011, September 7, 2011, and September 14, 2011, Plaintiff had no joint
swelling (Tr. 441-442). In addition, Ms. Ellis never restricted Plaintiff’s activities, and the
Plaintiff treating sources repeatedly recommended diet and/or exercise for the Plaintiff.
Exercise and/or diet was recommended by Mercy Clinic notes on 05/14/09 (T. 260); 09/03/09 (T.
258); 10/05/09 (T. 256); 10/27/09 (T. 254); 11/30/09 (T. 252); 01/22/10 (T. 250); 02/04/10 (T.
248); 02/18/10 (T. 246); and 03/02/10 (T. 243).
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). It is the ALJ's function to resolve conflicts among
‘the various treating and examining physicians.’ ” Bentley v. Shalala, 52 F.3d 784, 787 (8th
Cir.1995). 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. Id. Johnson v.
Apfel 240 F.3d 1145, 1148 (C.A.8 (Neb.),2001).
The court finds that the ALJ properly considered the opinions of treating and non-treating
sources in determining the Plaintiff’s RFC.
C. Step Four:
Step four requires the ALJ to consider whether the claimant retains the RFC to perform
her past relevant work. The claimant bears the burden of demonstrating an inability to return to
past relevant work. Pate-Fires v. Astrue 564 F.3d 935, 942 (C.A.8 (Ark.),2009) citing Steed v.
Astrue, 524 F.3d 872, 875 n. 3 (8th Cir.2008).
In addition to properly evaluating Plaintiff’s RFC, the ALJ also properly considered the
demands of her past work and compared those demands to Plaintiff’s RFC. The ALJ relied on
the testimony of VE and the Dictionary of Occupational Titles (DOT) (Tr. 55). The regulations
provide that the ALJ may elicit testimony from a vocational expert in evaluating a claimant's
capacity to perform past relevant work. 20 C.F.R. § 404.1560(b)(2) (“We may use the services of
vocational experts or vocational specialists ... to obtain evidence we need to help us determine
whether you can do your past relevant work, given your residual functional capacity.”). This
court has implicitly approved of an ALJ considering vocational expert testimony at step four of
the evaluation process. See Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir.1994).
The VE testified that Plaintiff’s past relevant work as a cashier is generally performed at
the light and unskilled level and her past relevant work as a grocery checker is generally
performed at the light, semiskilled level (Tr. 31). The ALJ asked the VE to consider a
hypothetical individual of the same age, education, and past work as Plaintiff who was limited to
light work and occasional balancing, stooping, kneeling, crouching, crawling, and climbing of
ramps and stairs, but no climbing of ladders (Tr. 32). Even though this hypothetical question
included more limitations than the ALJ ultimately found the record supported, the VE still found
that such an individual could perform the jobs of cashier and grocery checker as they are
generally performed (Tr. 33).
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 Plaintiff’s RFC, as determined by the ALJ, allowed her to return
to her past relevant work.
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 March 5, 2014.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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