Cheeks-Matthews v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Wiedemann on June 5, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BRANDY D. CHEEKS-MATTHEWS
CIVIL NO. 16-2095
NANCY A. BERRYHILL, 1 Commissioner
Social Security Administration
Plaintiff, Brandy D. Cheeks-Matthews, 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 claims 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 August 8, 2013, alleging
an inability to work due to scoliosis, migraines, a torn ACL in the left knee, and a right shoulder
problem. (Doc. 12, pp. 49, 126). An administrative hearing was held on October 28, 2014, at
which Plaintiff appeared with counsel and testified. (Doc. 12, pp. 24-48).
By written decision dated February 11, 2015, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Doc.
Nancy A. Berryhill, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
12, p. 15). Specifically, the ALJ found Plaintiff had the following severe impairments: a
history of scoliosis, and left knee arthroscopy for internal derangement. 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. (Doc. 12, p. 15). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to perform a full range of sedentary work as
defined in 20 C.F.R. § 416.967(a).
The ALJ, with the use of the Medical-Vocational
Guidelines (Grids), found Plaintiff was not disabled. (Doc. 12, pp. 18-19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on March 24, 2016. (Doc. 12, pp. 5-7). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 5). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs.
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).
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 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), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. § 416.920.
Plaintiff argues the following issues on appeal: 1) the ALJ failed to address third-party
assessments; 2) the ALJ failed to address the opinion of Terry Hoyt; and 3) the ALJ erred in
rejecting Plaintiff’s diagnoses of fibromyalgia and migraines. 2
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). While “severity is not an
onerous requirement for the claimant to meet…it is also not a toothless standard.” Wright v.
Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citations omitted). 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 claimant has the burden of proof of showing
she suffers from a medically-severe impairment at Step Two. See Mittlestedt v. Apfel, 204
F.3d 847, 852 (8th Cir.2000).
While the ALJ did not find all of Plaintiff’s alleged impairments 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
The Court has reordered Plaintiff’s arguments to correspond with the five-step analysis utilized by the Commissioner.
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”). The Court finds the ALJ did not commit reversible error in setting
forth Plaintiff’s severe impairments during the relevant time period.
Subjective Complaints and Symptom Evaluation:
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 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
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 time period in question Plaintiff was able to take care of her
personal needs; do her laundry and keep her room clean; shop in stores for personal needs;
drive; watch television, read and play games on the computer; and spend time with others
talking and playing games.
With respect to Plaintiff’s physical impairments and pain, the record revealed that
Plaintiff sought very little treatment during the time period in question. See Novotny v. Chater,
72 F.3d 669, 671 (8th Cir. 1995) (per curiam) (failure seek treatment inconsistent with
allegations of pain).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 Court notes that
Plaintiff’s examining physicians also chose to treat Plaintiff’s alleged disabling impairments
conservatively. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998); See Robinson v.
Sullivan, 956 F.2d 836, 840 (8th Cir. 1992) (course of conservative treatment contradicted
claims of disabling pain).
Plaintiff contends that the ALJ failed to consider the third-party statements of others.
While the ALJ is “not required to accept all lay testimony ... it is almost certainly error to
ignore it altogether.” Willcockson v. Astrue, 540 F.3d 878, 881 (8th Cir. 2008); Smith v.
Heckler, 735 F.2d 312, 316–17 (8th Cir.1984) (finding that ALJ's failure to mention three lay
witnesses' affidavits suggested that the ALJ overlooked them). However, the ALJ may
discount third-party testimony on the same grounds as he or she discounts a claimant's own
testimony. Black v. Apfel, 143 F.3d 383 at 387. Moreover, failure to specifically discuss and
cite evidence does not mean that it was not considered by the ALJ. Wildman v. Astrue, 596
F.3d 959, 966 (8th Cir.2010) (citation omitted). In the particular case, the Court does not find
the ALJ’s failure to specifically address third-party statements reversible error as the same
grounds used to discount Plaintiff’s testimony also discount the third-party statements.
Therefore, although it is clear that Plaintiff suffers with some degree of limitation, she
has not established that she 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.
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 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 h[er] RFC.” Id.
When determining the RFC, a treating physician's opinion is given more weight than
other sources in a disability proceeding. 20 C.F.R. § 404.1527(c)(2).
When a treating
physician's opinion is supported by proper medical testing, and is not inconsistent with other
substantial evidence in the record, the ALJ must give the opinion controlling weight. Id.
“However, [a]n ALJ may discount or even disregard the opinion of a treating physician where
other medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (alteration in original)
(internal quotation omitted). Ultimately, the ALJ must “give good reasons” to explain the
weight given the treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
In the present case, the ALJ considered the medical assessments of examining and nonexamining agency medical consultants, Plaintiff’s subjective complaints, and her medical
records when he determined Plaintiff could perform sedentary work. The Court notes that in
determining Plaintiff’s RFC, the ALJ discussed the medical opinions of examining and nonexamining 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); 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).
Plaintiff argues that the ALJ erred in not giving Dr. Terry L. Hoyt’s assessment
substantial weight. 3 A review of the record revealed that Dr. Hoyt did not treat Plaintiff during
the time period in question. Plaintiff was examined by Dr. Ted Honghiran, an orthopedic
doctor, on November 17, 2014, who after examining Plaintiff’ opined that Plaintiff could do a
The Court notes Plaintiff filed a previous application for benefits that included Dr. Hoyt’s assessment. The
ALJ’s denial of benefits was affirmed by this Court. See Cheeks v. Colvin, Case No. 12-2188, 2013 WL 4498751
(W.D.Ark. August 21, 2013).
“sit down job.” (Doc. 12, pp. 403-407). After reviewing the record as a whole, the Court finds
substantial evidence supports the ALJ’s RFC determination for the time period in question.
Use of the Medical Vocational Guidelines (Grids):
Once Plaintiff has established a prima facie case by showing an inability to perform
past relevant work, the burden of proof shifts to the Commissioner to show that Plaintiff has
the residual functional capacity to perform some other kind of work and that jobs are available
in the national economy which realistically fit his capabilities. Reed v. Sullivan, 988 F.2d 812,
815 (8th Cir. 1993). If the claimant is found to have only exertional impairments (affecting
the ability to perform physical labor), the Commissioner may meet this burden by referring to
the Grids which are fact-based generalizations about the availability of jobs for people of
varying ages, educational background, and previous work experience, with differing degrees
of exertional impairment. Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997); Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)(citations omitted). Given the Court’s finding that
substantial evidence supports the ALJ's determination that Plaintiff is capable of the full range
of sedentary work, the Court believes the ALJ properly relied on the Grids, eliminating the
need for expert vocational testimony, in concluding that given Plaintiff's age, education, work
experience, and capacity for sedentary work, Plaintiff was not disabled.
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 5th day of June 2017.
/s/ Erin L. Wiedemann
HON. ERIN L. WIEDEMANN
UNITED STATES MAGISTRATE JUDGE
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