Barlow v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 16, 2016. (rw)

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

TIMOTHY J. BARLOW

PLAINTIFF

v.

CIVIL NO. 15-2022

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Timothy J. Barlow, 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).
I.

Procedural Background:
Plaintiff protectively filed his current applications for DIB and SSI on October 30,

2007, 1 alleging an inability to work since September 1, 2005, due to a mental/chemical
imbalance, obsessive/compulsive disorder, depression, left shoulder pain, anxiety, and suicide
attempts. (Tr. 83, 131, 946). For DIB purposes, Plaintiff maintained insured status through
March 31, 2011. (Tr. 11). On May 18, 2009, an order of dismissal was entered. (Tr. 25). On

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The Court notes there is also a DIB application dated April 13, 2012, in the record. (Tr. 71).

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June 1, 2009, the case was re-opened after new and material evidence was submitted. (Tr. 11).
An administrative hearing was held on August 8, 2013, at which Plaintiff appeared with
counsel and testified. (Tr. 964-997).
By written decision dated October 25, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
14). Specifically, the ALJ found Plaintiff had the following severe impairments: Hepatitis C;
a torn left rotator cuff, status post repair; depression; anxiety; a personality disorder; and
polysubstance abuse/dependence. 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 medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except
he can perform jobs that involve only simple tasks and simple instructions with
only incidental interpersonal contact.
(Tr. 16). With the help of a vocational expert, the ALJ determined Plaintiff could perform
work as a cleaner in a hospital, a conveyor feeder/off bearer, and a laundry aide. (Tr. 21).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on December 8, 2014. (Tr. 4-6). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 6).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
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.

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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. 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).
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).
A Plaintiff must show that his disability, not simply his impairment, has lasted for at least
twelve consecutive months.

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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.
III.

Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred by failing to consider

the medical evidence between 2005 and 2010; 2) the ALJ erred in his evaluation of the opinion
evidence; and 3) the ALJ failed to perform a proper credibility analysis.
A.

Insured Status and Relevant Time Periods:

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 March 30, 2011. 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 September 1, 2005, his alleged onset
date of disability, through March 30, 2011, the last date he was in insured status under Title II
of the Act.

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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).
With respect to Plaintiff’s SSI application, benefits are not payable prior to the date of
application, regardless of how far back disability may, in fact, be alleged or found to extend.
See 20 C.F.R. § 416.335. Therefore, the relevant period is from October 30, 2007, the date
Plaintiff protectively applied for SSI benefits, through October 25, 2013, the date of the ALJ’s
decision.
B.

ALJ considering the medical evidence:

Plaintiff argues that the ALJ failed to properly consider all of the medical records,
specifically the records dated 2005 through 2010.
“Although required to develop the record fully and fairly, an ALJ is not required to
discuss every piece of evidence submitted.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998).
Moreover, “[a]n ALJ's failure to cite specific evidence does not indicate that such evidence
was not considered.” Id. After reviewing the record, the Court finds that the ALJ properly
discussed Plaintiff’s medical records for the relevant time period.

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C.

ALJ’s RFC Determination and Medical Opinions:

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 medium work with limitations. The Court
notes that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining
and non-examining medical professionals, including the opinions of Drs. Kathleen M. Kralik,
Patricia J. Walz, Clifford Evans, Jerry R. Henderson, Brad F. Williams, and Alice M.
Davidson, as well as “other source” medical opinions completed by Ms. Denise Stites, LPC,
Ms. Alice Slavens, APN, and Ms. Dena Baker, M.S., 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
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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.
D.

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 Eighth Circuit has observed, “Our touchstone is
that [a claimant’s] credibility is primarily a matter for the ALJ to decide.” Edwards, 314 F.3d
at 966.
After reviewing the administrative record, it is clear that the ALJ properly considered
and evaluated Plaintiff’s subjective complaints, including the Polaski factors. While the record
reveals that Plaintiff has a history of mental health treatment, the evidence of record shows that
Plaintiff responded well to treatment. The record further reveals that during the relevant time
period Plaintiff sought employment, took college courses, and reported that he spent time
running and lifting weights. In October of 2012, Plaintiff reported to Dr. Walz that he was
able to shop; spend time attending church and working out with friends; and studying the Bible.
(Tr. 395). In November of 2012, Plaintiff was noted to be in excellent physical condition, and

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that his mental impairment was minimal. (Tr. 421). In April of 2013, Plaintiff was noted to
have normal attention and concentration, but Plaintiff reported he was having trouble managing
between school and his personal/spiritual maintenance. (Tr. 462, 464).
With regard to the Third Party Statements completed by Plaintiff’s mother and friend,
the ALJ properly considered this evidence but found it unpersuasive. This determination was
within the ALJ's province. See Siemers v. Shalala, 47 F.3d 299, 302 (8th Cir. 1995); Ownbey
v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993).
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, he
has not established that he is unable to engage in any gainful activity. Accordingly, the Court
concludes that substantial evidence supports the ALJ’s conclusion that Plaintiff’s subjective
complaints were not totally credible.
E.

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 him from performing work as a cleaner
in a hospital, a conveyor feeder/off bearer, and a laundry aide. Pickney v. Chater, 96 F.3d 294,
296 (8th Cir. 1996)(testimony from vocational expert based on properly phrased hypothetical
question constitutes substantial evidence).

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IV.

Conclusion:
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 16th day of February, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNIT ED STATES MAGISTRATE JUDGE

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