Barnes v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 14, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHEILA L. BARNES
CIVIL NO. 13-2147
CAROLYN W. COLVIN, Commissioner
Social Security Administration
Plaintiff, Sheila L. Barnes, 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 her 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 her current application for SSI on April 7, 2011, alleging an
inability to work due to chronic obstructive pulmonary disease, and high blood pressure. (Tr.
118, 144). An administrative hearing was held on January 25, 2012, at which Plaintiff appeared
with counsel and testified. (Tr. 24-58).
By written decision dated June 7, 2012, the ALJ found that Plaintiff became disabled on
February 17, 2012, and remained disabled through the date of the decision. (Tr. 12). The ALJ
found that since the alleged onset date of December 31, 2010, Plaintiff had an impairment or
combination of impairments that were severe. (Tr. 14). Specifically, the ALJ found Plaintiff had
the following severe impairments: chronic obstructive pulmonary disease (COPD) and
hypertension. However, after reviewing all of the evidence presented, he determined that prior
to February 17, 2012, 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 that, prior to February 17, 2012, Plaintiff retained the residual
functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 416.967(a) reduced by the need to
avoid even moderate exposure to temperature extremes, humidity,
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform other
work as a clerical worker, an assembler, and a vehicle escort driver, prior to February 17, 2012.
(Tr. 18). The ALJ determined that beginning on February 17, 2012, the severity of Plaintiff’s
COPD met Listing 3.02A. (Tr. 18).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on April 4, 2013. (Tr. 1-4). 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, 17).
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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her 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 her disability, not simply her 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 her 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 her 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 her 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 failed to fully and completely
develop the record; 2) the ALJ’s credibility analysis was improper; 3) the ALJ’s RFC
determination was inconsistent with the evidence; and 4) Plaintiff cannot perform the jobs
identified at Step Five.
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
Subjective Complaints and Credibility Analysis:
We now address the ALJ's assessment of Plaintiff's subjective complaints. 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 her pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of her 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, it is clear that the ALJ properly considered and
evaluated Plaintiff’s subjective complaints, including the Polaski factors. A review of the record
revealed that during the relevant time period, Plaintiff indicated that she was able to occasionally
take care of her grandsons; to take care of her personal needs; to prepare simple meals; to clean
and do laundry at a slow pace and to mow the lawn with a riding lawnmower; to shop in stores
for food at a slow pace; to pay bills and count change; and to read, watch television, play handheld games and cards, and go fishing a few times a month weather permitting. (Tr. 164-171,
The medical evidence revealed that Plaintiff has COPD. When discussing Plaintiff’s
respiratory impairment, the ALJ pointed out that despite the repeated recommendations to stop
smoking, Plaintiff continued to smoke throughout the relevant time period. See Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir.1997) (noting that a failure to follow prescribed treatment
may be grounds for denying an application for benefits); Mouser v. Astrue, 545 F.3d 634, 638
(8th Cir. 2008)(where claimant’s smoking had a direct impact on his impairments, the ALJ
appropriately considered claimant’s failure to stop smoking in making his credibility
With regard to Plaintiff’s hypertension, the record revealed that when Plaintiff took her
medication as prescribed her blood pressure was much more controlled. Brace v. Astrue, 578
F.3d 882, 885 (8th Cir. 2009) (“If an impairment can be controlled by treatment or medication,
it cannot be considered disabling.”)(citations omitted).
With regard to Plaintiff’s alleged depression, it is noteworthy that Plaintiff did not allege
a disabling mental impairment in her application for benefits. See Dunahoo v. Apfel, 241 F.3d
1033, 1039 (8th Cir. 2001) (failure to allege disabling mental impairment in application is
significant, even if evidence of depression is later developed). The record also failed to
demonstrate that Plaintiff sought ongoing and consistent treatment for mental impairments
during the relevant time period. See Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (holding
that lack of evidence of ongoing counseling or psychiatric treatment for depression weighs
against plaintiff’s claim of disability).
The Court would also note that while Plaintiff alleged an inability to seek treatment due
to a lack of finances, the record is void of any indication that Plaintiff had been denied treatment
due to the lack of funds. Murphy v. Sullivan, 953 F.3d 383, 386-87 (8th Cir. 1992) (holding that
lack of evidence that plaintiff sought low-cost medical treatment from her doctor, clinics, or
hospitals does not support plaintiff’s contention of financial hardship). The record also revealed
that Plaintiff was able to come up with the funds to support her smoking habit during the relevant
time period. 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
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). “[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 sedentary work with
limitations during the relevant time period, the ALJ considered the medical assessments of the
examining and non-examining agency medical consultants; Plaintiff’s subjective complaints; and
her medical records. The Court notes that the ALJ discussed the relevant medical records, and
the medical opinions of examining and non-examining medical professionals, 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). 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
Plaintiff's impairments did not preclude her from performing work as a clerical worker, an
assembler, and a vehicle escort driver, prior to February 17, 2012. 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 14th day of May, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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