Collins v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on January 21, 2014. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOANN IRENE COLLINS
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 applications for DIB & SSI on December 8, 2010, alleging an onset
date of January 1, 2006, due to plaintiff’s chronic diarrhea, DM, high blood pressure, high
cholesterol and high triblycerides. Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff then requested an administrative hearing, which was held on December
15, 2011. Plaintiff was present and represented by counsel.
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.
At the time of the administrative hearing, plaintiff was 52 years of age and possessed a
High School Education. The Plaintiff had past relevant work (“PRW”) experience as a cell
phone agent and insurance agent (T. 170).
On January 6, 2012, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s diabetes mellitus, chronic diarrhea, degenerative joint disease of the left knee,
left calcaneal heel spur, obesity, chronic back pain, history of chronic obstructive pulmonary
disease and hypertension did not meet or equal any Appendix 1 listing. T. 13. The ALJ found
that plaintiff maintained the residual functional capacity (“RFC”) to perform light work T. 13.
With the assistance of a vocational expert, the ALJ then determined Plaintiff could perform her
past relevant work. T. 17.
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. 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 ALJ is not required to act as Plaintiff’s counsel. See Clark v.
Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (ALJ not required to function as claimant’s substitute
counsel, but only to develop a reasonably complete record); see also Shannon v. Chater, 54 F.3d
484, 488 (8th Cir. 1995) (“reversal due to failure to develop the record is only warranted where
such failure is unfair or prejudicial”). The ALJ is required to recontact medical sources only if
the available evidence does not provide an adequate basis for determining merits of disability
claim. Sultan v. Barnhart, 368 F.3d 857, 863(8th Cir. 2004).
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). In this case the court believes that the ALJ
properly developed the record and had sufficient medical evidence to render an appropriate RFC
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 court has reviewed the ALJ’s decision and the record and concludes that, because the
ALJ gave several valid reasons for the ALJ's determination that Plaintiff 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. RFC Determination
The ALJ determined that the Plaintiff had the Residual Functional Capacity to perform a
full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).
Dr. Ronald Crow, a non-examining consultive source, issued a Physical RFC Assessment
on February 6, 2011 finding the Plaintiff could lift 50 pounds occasionally, 25 pounds frequently
and that she could sit and stand and/or walk for 6 hours in an 8-hour workday. (T. 254). There
were no postural (T. 255) or manipulative limitations noted (T. 256). Dr. Crow’s opinion was
reviewed and affirmed by Dr. Alice Davidson on March 14, 2011. (T. 266).
RFC assessments from a non-examining consultive source generally do not constitute
substantial evidence, (See, e.g., Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999) (stating that
the opinion of a consultative physician does not generally satisfy the substantial evidence
requirement)). The Eighth Circuit Court of Appeals, however, 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).
The ALJ correctly points out that the Plaintiff repedely failed to follow her doctors
instructions in regards to medication and diet. The Plaintiff was initially placed on a diabetic diet
in April 2002 (T. 281). In June 2002 her treating physician noted that her DM was not under
good control and Dr. Marshall told the Plaintiff that she “has to follow her diabetic diet closer.”
(T. 280). In July 2004 Dr. Marshall notes that the Plaintiff “is currently not taking any of her
diabetic medication” and she was again admonished “to follow a diabetic diet.” (T. 278). Dr.
Marshall again noted in August 2005 that the Plaintiff was not taking her diabetic medication. (T.
277). In August 2011 Dr. Marshall again told the Plaintiff that “she really needs to follow a better
diet and we have gone over the diabetic diet again.” (T. 275).
In February 2008 the Plaintiff began to see Dr. McAuley who noted that the Plaintiff
“rarely checks blood sugar” and he told her to exercise. (T. 247). In May 2008 he “encouraged
her to go on a diet.” (T. 246). In May 2010 Dr. McAuley recommended insulin which the
Plaintiff refused. (T. 240).
In March 2009 Dr. McAuley referred the Plaintiff to Dr. Ron White who assessed the
Plaintiff with chronic diarrhea of “unclear etiology” and recommended a high fiber diet. (T. 225).
In May 2009 the Plaintiff reported to Dr. White that she noted “possible round or flat worms” in
her stool and Dr. White prescribed Mebendazole2 or Vermox 100 mgs which he considered “an
adequate treatment for her questionable worm infestation.” (T. 223). She was to see Dr. White
for a follow up if there were further problems but the medical records do not indicate the Plaintiff
had any follow up visit with Dr. White.
In addition to the results of objective medical tests, an ALJ may properly consider the
claimant's noncompliance with a treating physician's directions, Holley v. Massanari, 253 F.3d
1088, 1092 (8th Cir.2001), including failing to take prescription medications, Riggins, 177 F.3d
at 693, and to seek treatment, Comstock v. Chater, 91 F.3d 1143, 1146-47 (8th Cir.1996).
None of the Plaintiff’s treating physicians ever placed any work restrictions on the
Plaintiff and continued to encourage proper diet and exercise. The Plaintiff provided no contrary
RFC assessment by another physician, treating or otherwise. Thus, the ALJ had an adequate
medical basis to find Plaintiff had the RFC to perform a wide range of light work and could
therefore return to her past relevant work. See Raney v. Barnhart, 396 F.3d 1007, 1010 (8th
Cir.2005) (concluding that one consulting physician's RFC assessment supported the ALJ's RFC
finding when none of the claimant's treating physicians opined she was unable to work). Moore
v. Astrue 572 F.3d 520, 523 -524 (C.A.8 (Ark.),2009).
The ALJ’s determination of Plaintiff’s ability to perform work despite her physical
limitations, is based on the objective medical evidence regarding Plaintiff’s alleged impairments.
See Lewis v. Barnhart, 353 F.3d 642, 646,(8th Cir. 2003) (holding that the plaintiff’s residual
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functional capacity is a medical question defined wholly in terms of the plaintiff’s physical
ability to perform exertional tasks or, in other words, what the plaintiff can still do despite his or
her physical or mental limitations).
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). The Plaintiff offered no opinion from any treating
source that she was unable to return to her past relevant work.
John Massey, VE, testified that (Tr. 70-73) he classified plaintiff’s past work at Hampton
Inn as front desk clerk or reservation agent, reservation clerk, DOT code 238.367-038, performed
at the light level, semiskilled with an SVP of 4. He classified all past jobs where she sold cell
phones and pagers as retail sales clerk, DOT 279.357-054, light semi-skilled and 3. Insurance
Agent, DOT 350.287- 010, was classified as light, skilled and 6 with sit/stand in the job (Tr.
ALJ wrote that plaintiff was assigned the residual functional capacity (RFC) for a full
range of light work (Tr. 13) and that she could therefore return to her past relevant work (PRW)
as an insurance agent, front desk clerk and cell phones/pagers/telephone clerk and, based on VE
testimony, was not disabled (Tr. 17). See Smith v. Shalala, 987 F.2d 1371, 1375 (8th Cir. 1993)
(holding that ALJ may rely upon DOT in determining if the plaintiff can return to his past
relevant work). The court finds this determination to be supported by the record and the Plaintiff
offered no evidence to the contrary.
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 January 21, 2014.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE
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