Hughes v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 1, 2017. (hnc)

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

THOMAS O. HUGHES

PLAINTIFF

v.

CIVIL NO. 15-2234

NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Thomas Hughes, 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”) 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 applications for DIB and SSI on November 7, 2012. (ECF

No. 14, p. 14). In his applications, Plaintiff alleges disability due to emphysema, chronic
obstructive pulmonary disease (“COPD”), colostomy problems, heart problems, and high
blood pressure. (ECF No. 14, p. 200). Plaintiff alleges an onset date of January 1, 2010. (ECF
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
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No. 14, pp. 14, 195). These applications were denied initially and again upon reconsideration.
(ECF No. 14, pp. 14, 48-97).
Thereafter, Plaintiff requested an administrative hearing on his denied applications, and
this hearing request was granted. (ECF No. 14, p. 113). Plaintiff’s administrative hearing was
held on February 12, 2014, in Fort Smith, Arkansas (ECF No. 14, pp. 26-46). Plaintiff was
present and was represented by Matthew Ketcham. Id. Plaintiff and Vocational Expert (“VE”)
Deborah Steele testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-six
(56) years old, which is defined as a “person of advanced age” under 20 C.F.R. §§ 404.1563(e),
416.963(e). (ECF No. 14, p. 26, 195). As for his level of education, Plaintiff has earned a GED.
(ECF No. 14, p. 201).
After this hearing, on April 17, 2014, the ALJ entered an unfavorable decision denying
Plaintiff’s applications for DIB and SSI. (ECF No. 14, pp. 11-21). In this decision, the ALJ
found Plaintiff met the insured status requirements of the Act through March 31, 2010. (ECF
No. 14, p. 16, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since January 1, 2010, his alleged onset date. (ECF No. 14, p. 16, Finding
2). The ALJ determined Plaintiff had the following severe impairments: chronic obstructive
pulmonary disease (“COPD”) and status post repair of abdominal wound with colostomy
placement. (ECF No. 14, pp. 17, Finding 3). Despite being severe, the ALJ determined these
impairments did not meet or medically equal the requirements of any of the Listings of
Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 14, p. 17, Finding
4).

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The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
14, pp. 17-19, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found
his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform “medium work as defined in 20 C.F.R. 404.1567(c) and
416.967(c) except he must avoid even moderate exposure to fumes, odors, dusts, gases, poor
ventilation and similar environments.” Id.
The ALJ then determined Plaintiff had no Past Relevant Work (“PRW”). (ECF No. 14,
p. 19, Finding 6). The VE testified at the administrative hearing regarding these issues. (ECF
No. 14, pp. 42-44). Based on Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were jobs existing in significant numbers in the national economy Plaintiff
could perform, such as a door greeter, store laborer, and a bundle clerk. (ECF No. 14, pp. 1920, Finding 10). Because jobs exist in significant numbers in the national economy which
Plaintiff can perform, the ALJ also determined Plaintiff had not been under a disability, as
defined by the Act, from January 1, 2010, through April 17, 2014, the date of the ALJ’s
decision. (ECF No. 14, p. 20, Finding 11).
Thereafter, on May 7, 2014, Plaintiff requested a review by the Appeals Council (ECF.
No. 14, p. 9). The Appeals Council denied this request on August 25, 2015. (ECF No. 14, pp.
5-8). On October 30, 2015, Plaintiff filed the present appeal with this Court. (ECF No. 1). The
parties consented to the jurisdiction of this Court on November 2, 2015. (ECF No. 5). This
case is now ready for decision.
II.

Applicable Law:
This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial

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evidence is less than a preponderance but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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, we must affirm the ALJ’s decision. Id.
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), 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), 1382c(a)(3)(D). A
Plaintiff must show that his disability, not simply his 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 his claim; (2) whether the claimant has a severe physical
and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet

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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(a)(4),
416.920(a)(4). Only if she reaches the final stage does the fact finder consider 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(a)(4)(v), 416.920(a)(4)(v).
III.

Discussion:
Plaintiff argues two issues on appeal: 1) the ALJ erred as it relates to his assessment of

credibility; and 2) the ALJ failed to develop the record as to Plaintiff’s RFC. (ECF No. 12).
A.

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 v. Barnhart, 314
F.3d 946, 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. The ALJ

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discussed Plaintiff’s extensive activities of daily living, the objective medical evidence, and
Plaintiff’s refusal to quit smoking despite his COPD. (ECF No. 14, pp. 18-19). The ALJ also
noted that Plaintiff testified that he continued to work part-time as a mechanic and mowed
lawns during the summers. (ECF No. 14, pp. 18-19, 29-32). Further, the ALJ pointed out
Plaintiff’s inconsistent statements with regard to his own abilities. (ECF No. 14, p. 19). At the
administrative hearing, Plaintiff stated he had only been able to lift approximately ten pounds
since early 2010, but Plaintiff reported on his Function Report on January 1, 2013, that he was
able to lift approximately forty pounds. (ECF No. 14, pp. 36, 222). Based on review of the
record as a whole, this Court finds substantial evidence supports the ALJ’s credibility
assessment and because the ALJ provided good reasons for discounting Plaintiff’s subjective
complaints, this Court defers to the ALJ’s credibility determination. see Leckenby v. Astrue,
487 F.3d 626, 632 (8th Cir. 2007) (this Court defers to the ALJ’s credibility determination
when it is supported by good reasons and substantial evidence).
C.

ALJ’s RFC Determination:

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545,
416.945. 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), 416.945(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

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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.
Plaintiff specifically contends that the ALJ’s RFC determination should have included
postural limitations due to Plaintiff having to manage the maintenance of his colostomy bag.
(ECF No. 12). Plaintiff managed the maintenance of his colostomy bag for at least five to six
years before his alleged onset date. (ECF No. 14, p. 611, 1139) (He states his stoma is
approximately 5 years old). Plaintiff does not direct this Court to, nor does the record contain,
any objective medical evidence Plaintiff’s postural activities such as bending, kneeling,
crouching, or stooping were limited. See Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(RFC is a medical question which must be supported by medical evidence). The only evidence
offered by Plaintiff or contained in the record regarding Plaintiff’s alleged postural limitations
due to the maintenance of his colostomy bag is Plaintiff’s own subjective testimony, which the
ALJ determined was less than fully credible. (ECF No. 14, p. 18-19, 40-41). Furthermore, on
his January 1, 2013, Function Report, Plaintiff attributed his alleged difficulty bending,
kneeling, and squatting to alleged back pain and knee pain, and not to maintenance of his
colostomy bag. (ECF No. 14, p. 222). Plaintiff’s contention that the maintenance of his
colostomy bag results in any more limitation than that contemplated by the ALJ’s RFC
determination, lacks objective medical support in the record.
The ALJ’s RFC determination accounts for all of Plaintiff’s medically determinable
impairments. The ALJ fully summarized all of Plaintiff’s medical records and separately
discussed each of Plaintiff’s alleged impairments. The Court notes that in determining
Plaintiff’s RFC, the ALJ considered the medical opinions in the record, including those of the

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non-examining state agency consultants, 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). Based on review of the record as a whole,
the Court finds substantial evidence to support the ALJ’s RFC determination for the relevant
time period.
D.

Hypothetical Questions 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 VE fully set forth the
impairments that 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 the duties of a door greeter,
store laborer, or bundle clerk. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996) (testimony
from vocational expert based on properly phrased hypothetical question constitutes substantial
evidence).
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 is
hereby affirmed. The undersigned further finds that the Plaintiff’s Complaint should be, and is
hereby dismissed with prejudice.

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IT IS SO ORDERED this 1st day of March, 2017.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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