Beneux, II v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 8, 2016. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RICK DALE BENEUX, II
PLAINTIFF
v.
NO. 15-2046
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Rick Dale Beneux, II, 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 January 31,
2013, alleging an inability to work since January 7, 2012, due to memory loss, neck/back
problems, fibromyalgia, and depression. (Tr. 131, 287, 293). For DIB purposes, Plaintiff
maintained insured status through December 31, 2012. (Tr. 38, 300). An administrative
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hearing was held on February 11, 2014, at which Plaintiff appeared with counsel and testified.
(Tr. 55-78).
By written decision dated August 22, 2014, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 40).
Specifically, the ALJ found Plaintiff had the following severe impairments: a connective tissue
disorder, degenerative disc/joint disease, an organic mental disorder, an affective disorder, and
a substance addiction disorder. 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. 40). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except he can perform only simple tasks and simple instructions, and he can
have only incidental contact with the public.
(Tr. 42). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a fishing reel assembler, and a dowel inspector. (Tr. 48-49).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
after reviewing additional evidence submitted by Plaintiff, denied that request on January 22,
2015. (Tr. 1-7). 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. 12, 13).
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), abrogated on other grounds by Higgins v.
Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520, 416.920.
III.
Discussion:
Plaintiff argues the following issues on appeal: 1) the ALJ erred in determining
Plaintiff’s severe impairments; 2) the ALJ’s RFC determination is inconsistent with the
evidence; and 3) the ALJ cannot perform the jobs identified at Step Five.
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 December 31, 2012. 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 January 2, 2012, his alleged onset date
of disability, through December 31, 2012, 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 January 31, 2013, the date
Plaintiff protectively applied for SSI benefits, through August 22, 2014, the date of the ALJ’s
decision.
B.
Severe Impairments:
At Step Two of the sequential analysis, the ALJ is required to determine whether a
claimant's impairments are severe. See 20 C .F.R. § 404.1520(c). To be severe, an impairment
only needs to have more than a minimal impact on a claimant's ability to perform work-related
activities. See Social Security Ruling 96-3p. The Step Two requirement is only a threshold test
so the claimant's burden is minimal and does not require a showing that the impairment is
disabling in nature. See Brown v. Yuckert, 482 U.S. 137, 153-54 (1987). The claimant,
however, has the burden of proof of showing he suffers from a medically-severe impairment
at Step Two. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
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While the ALJ did not find each of Plaintiff’s specific diagnoses to be severe
impairments, the ALJ specifically discussed the alleged impairments in the decision, and
clearly stated that he considered all of Plaintiff’s impairments, including the impairments that
were found to be non-severe. See Swartz v. Barnhart, 188 F. App'x 361, 368 (6th Cir. 2006)
(where ALJ finds at least one “severe” impairment and proceeds to assess claimant's RFC
based on all alleged impairments, any error in failing to identify particular impairment as
“severe” at step two is harmless); Elmore v. Astrue, 2012 WL 1085487 *12 (E.D. Mo. March
5, 2012); see also 20 C.F.R. § 416.945(a)(2) (in assessing RFC, ALJ must consider “all of [a
claimant's] medically determinable impairments ..., including ... impairments that are not
‘severe’ ”); § 416.923 (ALJ must “consider the combined effect of all [the claimant's]
impairments without regard to whether any such impairment, if considered separately, would
be of sufficient severity”).
Thus, the ALJ's finding that not all of Plaintiff's alleged
impairments were “severe” impairments does not constitute reversible error.
The Court notes that after the ALJ issued his decision, Plaintiff submitted additional
medical evidence to the Appeals Council regarding both Plaintiff’s mental and physical
impairments. The Court considered this evidence but still finds substantial evidence of the
record as a whole supports the ALJ's decision for the time periods in question.
C.
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
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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. A review of the
record reveals that Plaintiff completed a Function Report in February of 2013, wherein he
indicated that he was unable to walk, stand, or sit for very long, and that he did very little
throughout the day. (Tr. 340-347). However, the record also reveals that Plaintiff reported to
examiners that he was able to drive unfamiliar routes, to probably shop independently, and to
perform activities of daily living adequately but noted some limitation due to pain. In assessing
Plaintiff’s credibility, the ALJ noted that Dr. Kathleen M. Kralik indicated that when she
initially viewed Plaintiff through a curtained glass in the waiting area Plaintiff sat upright in a
relaxed posture while completing forms. However, when Dr. Kralik entered the examining
area, Plaintiff was noted to be in a bent over posture and to move slowly and stiffly. During
this evaluation, Dr. Kralik indicated that while Plaintiff did have some limitations, he also was
fairly dramatic, manipulative, and controlling when not discussing the topics Plaintiff wanted
to discuss.
With respect to Plaintiff’s alleged mental impairments, the ALJ also pointed out that
the record fails to establish that Plaintiff sought on-going and consistent treatment from a
mental health provider. 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). While Plaintiff may have some limitations due to his mental
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impairments, the Court finds substantial evidence to support the ALJ’s determination that
Plaintiff does not have disabling mental impairments.
With regard to Plaintiff’s alleged back and neck problems, the ALJ found that while
Plaintiff may indeed have some limitations, the evidence did not support a finding of disability.
A review of the evidence reveals Plaintiff’s providers opted to treat Plaintiff’s pain
conservatively with medication. See Gowell v. Apfel, 242 at 796 (holding fact that physician
prescribed conservative treatment weighed against Plaintiff’s subjective complaints). While
Plaintiff may indeed experience some degree of pain due to his back and neck impairments,
the Court finds substantial evidence of record supporting the ALJ's finding that Plaintiff does
not have a disabling back or neck impairment. See Lawrence v. Chater, 107 F.3d 674, 676
(8th Cir. 1997) (upholding ALJ's determination that claimant was not disabled even though
she had in fact sustained a back injury and suffered some degree of pain).
With regard to the Third Party Statement completed by Plaintiff’s mother, 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.
D.
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
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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 treating, examining
and non-examining agency medical consultants, Plaintiff’s subjective complaints, and his
medical records when he determined Plaintiff could perform sedentary work with limitations.
The Court notes that in determining Plaintiff’s RFC, the ALJ discussed the medical opinions
of treating, examining and non-examining medical professionals, including the opinions of
Drs. John M. Faucett, Marvin N. Kirk, Chester Lawrence Carlson, George Howell, J.C. Friedl,
Terry L. Efird, Ted Honghiran, and Kathleen M. Kralik, 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).
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With respect to the more restrictive limitations found by Plaintiff’s treating physicians,
Drs. Howell and Friedl, the ALJ found that the limitations set forth by these physicians were
not supported by either the objective medical evidence or their own treatment notes. Davidson
v. Astrue, 501 F.3d 987, 990-91 (8th Cir. 2007) (finding ALJ correctly discounted a physician’s
assessment report when his treatment notes contradicted the report). The Court further notes
that it was proper for the ALJ to give more weight to the opinion of Dr. Honghiran, an
orthopedic specialist, over the opinion of a general practitioner. See Kelley v. Callahan, 133
F.3d 583, 589 (8th Cir. 1998) (Commissioner is encouraged to give more weight to the opinion
of a specialist about medical issues related to his area of specialty); 20 C.F.R. § 404.1527(d)(4)(5). Based on the record as a whole, the Court finds substantial evidence to support the ALJ’s
RFC determination for the relevant time period.
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 a fishing
reel assembler, and a dowel inspector. 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 8th day of March, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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